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IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


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Photographic 

Sciences 

Corporation 


23  WEST  MAIN  STREET 

WEBSTER,  N.Y.  M5«0 

(716)  872-4303 


CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  Microreproductions  /  Institut  Canadian  de  microreproductions  historiques 


C 


: 


1 


Technical  and  Bibliographic  Notes/Notes  techniques  et  bibliographlques 


The  Institute  has  attempted  to  obtain  the  best 
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reproduction,  or  which  may  significantly  change 
the  usual  method  of  filming,  are  checlced  below. 


D 


D 


0 


D 


Coloured  covers/ 
Couverture  de  couleur 


I     I   Covers  damaged/ 


Couverture  endommagAe 

Covers  restored  and/or  laminated/ 
Couverture  restaurAe  et/ou  peiiiculAe 


r~~|   Cover  title  missing/ 


Le  titre  de  couverture  manque 


I      I   Coloured  maps/ 


D 


Cartes  gAographiques  en  couleur 


□    Coloured  ink  (i.e.  other  than  blue  or  blacic)/ 
Encre  de  couleur  (i.e.  autre  que  bleue  ou  noire) 

I     I   Coloured  plates  and/or  illustrations/ 


Planches  et/ou  illustrations  en  couleur 


Bound  with  other  material/ 
ReliA  avec  d'autres  documents 


r~p\    Tight  binding  may  cause  shadows  or  distortion 


along  interior  margin/ 

La  reliure  serrAe  peut  causer  de  I'ombre  ou  de  la 

distortion  le  long  de  la  marge  intArieure 

Blank  leaves  added  during  restoration  may 
appeur  within  the  text.  Whenever  possible,  these 
have  been  omitted  from  filming/ 
11  se  peut  que  certeines  peges  blanches  djoutAes 
lors  d'une  restauration  apparaissent  dans  le  texte, 
mais.  lorsque  cela  ttait  possible,  ces  pages  n'ont 
pas  At*  film«es. 

Additional  comments:/ 
Commentaires  supplAmentaires; 


L'Institut  a  microfilm^  le  meilleur  exemplaire 
qu'il  lui  a  At*  possible  de  se  procurer.  Les  details 
de  cet  exemplaire  qui  sont  peut-Atre  uniques  du 
point  de  vue  bibliographique,  qui  peuvent  modifier 
une  image  reproduite,  ou  qui  peuvant  exiger  une 
modification  dans  la  methods  norrnale  de  filmage 
sont  indiquAs  ci-dessous. 


I     I   Coloured  pages/ 


D 
D 
D 
D 
D 


D 


Pages  de  couleur 

Pages  damaged/ 
Pages  endommagtes 

Pages  restored  and/or  laminated/ 
Pages  restaurAes  et/ou  pellicultes 

Pages  discoloured,  stained  or  foxed/ 
Pages  dAcolorAes,  tachettes  ou  piqu^es 

Pages  detached/ 
Pages  ditachtes 

Showthrough/ 
Transparence 


I      I    Quality  of  print  varies/ 


Quality  inAgale  de  I'impression 

Includes  supplementary  material/ 
Comprend  du  materiel  supplAmentaire 

Only  edition  available/ 
Seuie  Edition  disponible 


Pages  wholly  or  partially  obscured  by  errata 
slips,  tissues,  etc.,  have  been  refilmed  to 
ensure  the  best  possible  image/ 
Les  pages  totalement  ou  partiellement 
obscurcies  par  un  feuiilet  d'errata.  une  pelure, 
etc..  ont  *tA  filmAes  A  nouveau  de  fa9on  h 
obtenir  la  meiileure  image  possible. 


Th 
to 


Th 
po 
of 
fih 


Or 
be 
th( 
sic 
oti 
fir 
sic 
or 


Th 
sh 
Til 

wl 

M 
dii 
en 
bfl 
rit 
rei 
mi 


This  item  is  filmed  at  the  reduction  ratio  checked  below/ 

Ce  document  est  film*  au  taux  de  reduction  indiquA  ci-dessous. 

10X  14X  ItX  22X 


26X 


30X 


y 


12X 


16X 


20X 


a4x 


28X 


32X 


Th«  copy  filmad  h«r«  has  b««n  reproduced  thanks 
to  the  generosity  of: 

Vancouver  Public  Library 


L'exemplaira  film*  fut  reproduit  grice  A  la 
g*n6rositA  de: 

Vancouver  Public  Library 


The  images  appearing  here  are  the  best  quality 
possible  considering  the  condition  and  legibility 
of  the  original  copy  and  in  keeping  with  the 
filming  contract  specifications. 


Les  images  suivantes  ont  At*  reproduites  avec  le 
plus  grand  soin,  compte  tenu  de  la  condition  at 
de  la  nettetA  de  l'exemplaira  film*,  at  en 
conformity  avec  les  conditions  du  contrat  de 
filmage. 


Original  copies  in  printed  paper  covers  are  filmed 
beginning  with  the  front  cover  and  ending  on 
the  last  page  with  a  printed  or  illustrated  impres- 
sion, or  the  back  cover  when  appropriate.  All 
other  original  copies  are  filmed  beginning  on  the 
first  page  with  a  printed  or  illustrated  impres- 
sion, and  ending  on  the  last  page  with  a  printed 
or  illustrated  impression. 


Les  exemplaires  originaux  dont  la  couverture  an 
papier  est  imprimAe  sont  filmAs  en  commengant 
par  le  premier  plat  at  en  terminant  soit  par  la 
derniire  pige  qui  comporte  une  empreinte 
d'imprassion  ou  d'illustration.  soit  par  le  second 
plat,  salon  le  cas.  Tous  les  autres  examplaires 
originaux  sont  filmAs  an  commandant  par  la 
premiere  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration  at  en  terminant  par 
la  derniAre  page  qui  comporte  une  telle 
empreinte. 


The  last  recorded  frame  on  each  microfiche 
shall  contain  the  symbol  —^  (meaning   "CON- 
TINUED"), or  the  symbol  V  (meaning   "END"), 
whichever  applies. 


Un  des  symboles  suivants  apparaltra  sur  la 
dernidre  image  de  cheque  microfiche,  selon  le 
cas:  le  symbole  — »■  signifie  "A  SUIVRE",  le 
symbole  V  signifie  "FIN". 


Maps,  plates,  charts,  etc.,  may  be  filmed  at 
different  reduction  ratios.  Those  too  large  to  be 
entirely  included  in  one  exposure  are  filmed 
beginning  in  the  upper  left  hand  corner,  left  to 
right  and  top  to  bottom,  as  many  frames  as 
required.  The  following  diagrams  illustrate  the 
method: 


Les  cartes,  planches,  tableaux,  etc..  peuvent  dtie 
film6s  A  des  taux  de  reduction  diffirents. 
Lorsque  le  document  est  trop  grand  pour  dtre 
reproduit  en  un  seul  clich6,  il  est  film*  A  partir 
de  Tangle  supArieur  gauche,  de  gauche  d  droite, 
et  de  haut  en  bas,  en  prenant  le  nombre 
d'images  nAcessaire.  Les  diagrammes  suivants 
illustrent  la  mAthode. 


1 

2 

3 

1 

2 

3 

4 

5 

6 

t^^ 


,  •    •  •    • 


•  1        ■ 

•  •   •      • 


...  • 

•  •  •        • 

•  •  •  •        « 

•  •   •       • 
*■ 


FUR-SEAL   ARBITRATION. 


ARGUMENT 


0» 


The  United  States 


BRFORK  THB 


TRIBUNAL  OF  ARBITRATION 


CONVENED  AT  PARIS 


TJNDKR  THB 


PB0VI8I0NS  OP  THE   TREATY   BETWEEN   THE   UNITED 
STATES  OF  AMERICA  AND  GREAT  BRITAIN, 
CONCLUDED      ''-BRUARY  29,  1892. 


WASHINGTON,  D.  C: 

GOVERNMENT  PRINTING  OFFICE. 

1893. 


152S86 


WLa 

1 


-M 


Tlie 


The 


f^ 


''A 


Coi 


Cla 


TABLE  OF  CONTENTS. 


FIRST. 

Pare 

WLatlaw  Is  to  govern  the  decision 1-9 

Appendix  to  part  first  (Mr.  Carter's  argument) 10-26 

Citations  from  writers  upon  tlie  law  of  nature  and  nations,  sliowing 
the  foundation  of  international  law,  its  relations  to  the  law  of 
nature,  and  the  sources  from  which  the  knowledge  of  it  is  to  he 
derived 10 

SECOND. 

The  acquisition  hy  Russia  of  jurisdictional  or  other  rights  over  Bering  Sea 

and  the  transfer  thereof  to  the  United  States 27-40 

THIRD. 

The  property  of  the  United  States  in  the  Alaslcan  seal  herds,  and  their  right 

to  protect  their  sealing  interests  and  industry 41-107 

I.  The  property  of  the  United  States  in  the  Alaskan  seal  herd 41 

The  form  of  the  institution— community  and  private  property.  57 

Ownership  not  ahsoluto 58 

Summary  of  doctrines  ostahlished 68 

Application  of  the  foregoing  principles  to  tlie  question  of  pro- 
perty in  the  Alaskan  herd  of  seals 69 

Principal  facts  in  the  life  of  the  fur-seal 75 

Appendix  to  part  third,  division  I  (Mr.  Carter's  argument) 108-129 

Authorities  upon  the  suhjcct  of  property  in  nniniala,  fcra;  natura  108 

II.  The  right  of  the  United  States  to  protect  their  sealing  interests  and 

industry 130-179 

Appendix  to  part  third,  division  II,  (Mr.  Phelps  Argu- 
ment)   180-189 

Additional  authorities  on  the  question  of  property....  180 

FOURTH. 
Conconent  regulations 190-214 

FIFTH. 
Claims  for  compen-   tion 215-227 

I.  Damages  claimed  hy  the  United  States 215 

II.  Damages  claimed  by  Great  Britain 217 

UI 


IV 


TABLE   OP   CONTENTS. 


^ 


M 


>  >>i 


SIXTH. 

Summary  of  the  evidence 228-313 

I.  The  general  nature  and  characteristica  of  the  fur  seal 230 

U.  The  difference  between  the  Alaskan  and  the  Rnsf-'  n  fur-seala 232 

A.  The  herda  are  different 233 

B.  The  Alaskan  does  not  mingle  with  the  Russian  herd 241 

0.  The  Alaskan  fur-seals  have  but  one  home,  namely,  the  Pribilof 

Islands.    They  never  leave  this  home  without  the  animu§ 
revertmdi,  and  are  never  seen  ashore  except  on  those  islands . .         249 

m.  Movements  of  the  seals  after  the  birth  of  the  young 251 

IV.  The  entire  office  of  reproduction  and  rearing  of  young  is  and  most 

be  performed  on  land 254 

y.  The  pup  is  entirely  dependent  upon  its  mother  for  nourishment  for 

several  months  after  its  birth 

The  cows  will  suckle  their  own  pups  only,  and  the  suckling  is 

done  on  land. 261 

YI.  The  cows,  while  suckling,  go  to  the  sea  for  food,  and  sometimes  to 
distances  as  great  as  100  and  200  miles,  and  are  during  such 

excursions  exposed  to  capture  by  pelagic  sealers 266 

VII.  Death  of  the  cow  causes  the  death  of  the  pup 269 

YIU.  The  fur-seal  is  a  polygamous  animal,  and  the  male  is  at  least  four 
times  as  large  as  the  female.  As  a  rule,  each  male  serves 
about  fifteen  or  twenty  females*  but  in  some  cases  as  many 

as  fifty  or  more  (Case  of  the  United  States,  p.  327) 286 

IX.  Destruction  by  pelagic  sealing  and  its  extent — the  remedy  proposed 
by  the  British  Commissioners— the  true  and  only  remedy  con- 
aists  in  absolute  prohibition  of  pelagic  sealing 295 

SEVENTH. 
Points  in  reply  to  the  British  Counter  Case 314-327 


228-313 

230 

232 

233 

241 

•ibilof 
mimut 

mda..  249 

251 

I  mast 

254 

)nt  for 

ling  is 

261 

mes  to 
gsnch 

266 

269 

at  four 
seryes 
)  many 

286 

oposed 
ly  con- 
295 

314-327 


Washington,  February  23, 1893. 
Sra:  We  have  the  honor  to  hand  you  herewith  the  argument  pre- 
pared by  us  as  counsel  of  the  United  States,  in  order  that  in  pursuance 
of  Article  V  of  the  treaty  between  the  United  States  and  Great  Britain, 
of  29th  February,  1892,  it  may  be  presented  to  the  Tribunal  of  Arbitra- 
tion constituted  by  that  treaty. 

Very  respectfully,  your  obedient  servants, 

E.  J.  Phelps. 
J.  0.  Carter. 
H.  M.  Blodgbtt, 

F.  B.  COUDERT. 

Hon.  John  W.  Foster, 

Agent  of  the  United  Statet, 


eu 
pa 
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ch 
he 
to 
cai 
wl 
thi 
an 
cai 

ag 
do 


8h< 
an 
no 
he 

po 

t 

pa 


ARGUMENT  OF  THE  UNITED  STATES. 


The  undersigned,  counsel  for  the  United  States,  conceive  that  before 
entering  upon  the  argument  which  it  has  been  made  their  duty  to  pre- 
pare, they  owe  more  than  a  formal  and  ceremonious  expression  of  their 
sense  of  the  importance  and  dignity  of  the  occasion  and  of  the  august 
character  of  the  Tribunal  which  they  are  to  address.  Iii8tan«!e8  have 
heretofore  occurred  in  which  nations  have  submitted  their  controversies 
to  peaceful  arbitration;  but  the  most  important  of  them  have  been 
cases  in  which  mere  pecuniary  reparation  was  sought  in  respect  to  acts 
which  could  not  be  recalled.  To-day  two  most  powerftil  nations  agree 
that  their  conflicting  claims  to  permanent  dominion  shall  be  reconciled 
and  determined  without  a  resort  to  those  methods  of  violeMce  which 
carry  with  them  sucb  limitless  destruction  and  sufl'ering.  A  just  hom- 
age is  thus  paid  to  the  civilized  sentiment  of  mankind  that  war  is  sel- 
dom, if  ever,  necessary ;  and  that  the  conclusions  of  reason  should  be 
made  to  supersede  the  employ m tut  of  tbrce. 


1 '  >    ' 


1,1* 


,    •..;,.'..  FIRST. 

WHAT  LAW  IS  TO  GOVERN  THE  DECISION! 

The  undersigned  believe  it  to  be  in  a  high  degree  important  that  it 
should  at  the  outset  be  clearly  understood  what  principles  and  rules 
are  to  guide  the  Arbitrators  in  reaching  their  conclusions.  Otherwise 
no  argument  can  be  intelligently  framed.  We  do  not  indeed  api)re- 
heud  that  there  can  be  any  serious  difference  of  opinion  upon  this 
X)oint. 

The  consciousness  and  immediate  conviction  of  every  one  having  any 
part  in  the  proceeding— Arbitrators  aud  counsel  alike— might  be  safely 


2 


AKOUMENT   OF  THE    UNITKI)   STATES. 


tippoalod  to  for  tlio  response  that  the  (l(>tcrniiniiti()ii  iiiiiKt  bo  {n'oniidcd 
upon  priiniplcH  lA'ru/ht.  It  can  not  bo  that  twonreat  nationH  liavo  vohiii- 
tarily  waivt'd  their  own  convictions  and  wubniittc*!  their  rival  chiinis  to 
the  detci  minations  of  cii  price,  or  merely  temporary  expediency.  It  in  not 
toHUch  empty  and  sljiftyexpedicnts  that  national  pride  and  power  have 
paid  their  homage.  The  arbitrament  of  force  can  be  worthily  replaced 
only  by  that  of  riflht.  Tliis  Tribunal  would  be  robbed  of  its  Hupreme 
dignity,  and  its  Judgnn'nt  would  hwe  its  value,  if  its  deliberations 
should  be  swayed  in  any  <legree  by  considerations  other  than  those  of 
Justice.  Its  proceedings  would  no  lo.  /^  i  be  judicial.  The  nation  for 
which  the  underMigned  have 'i"^  honor  to  be  retained  is  prepared  to 
accept  and  abide  by  any  determination  which  this  Tribunal  may  declare 
OS  the  just  conclusion  of  law  upon  the  facts  as  established  by  the  proofs. 
It  can  not  be  content  with  any  other. 

But  what  is  the  rule  or  principle  of  rightf  How  is  it  to  bo  described 
and  where  is  it  to  be  found  f  The  answer  to  this  question,  though  not 
so  imnuHliately  obvious,  is  yet  not  open  to  doubt.  In  saying  that  the 
rule  must  be  that  of  right,  it  is  intended,  aud  indeed  declared,  that  it 
must  be  amoral  rule,  a  rule  dictated  by  the  moral  sense;  but  this  may 
not  be  the  moral  sense  as  found  in  any  individual  mind,  or  as  exhibited 
by  the  concurring  sentiments  of  the  people  of  any  particulai'  nation. 
There  may  be — there  are — differences  iii  the  moral  convictions  of  the 
people  of  different  nations,  aud  what  is  peculiar  to  one  nation  can  not 
be  asserted  as  the  rule  by  which  the  conduct  g(  another  nation  is  to  be 
controlled.  The  controversy  to  be  determined  arises  between  two  dif- 
ferent nations,  and  it  has  benn  submitted  to  the  judgment  of  a  tribunal 
composed,  in  part,  of  the  citizens  of  several  other  nations.  It  is  im- 
mediately obvious  that  it  must  be  adjudged  upon  principles  and  rules 
which  both  nations,  and  allthe  Arbitral  ors  aMke  acknowledge;  thjc,  is 
to  say,  those  which  are  dictated  by  that  general  standard  of  Justine 
upon  which  civilized  nations  are  agreed;  and  this  is  international  laic. 
Just  as,  in  municipal  societies,  municipal  law,  aside  from  legislative 
enactments,  is  to  be  found  in  the  general  standard  of  justice  which  is 
acknowledged  by  the  members  of  each  particular  state,  so,  in  the  larger 
society  of  nations,  international  law  is  to  be  found  in  the  general  stand- 
ard of  justice  acknowledged  by  the  members  of  that  society.  There  is, 
indeed,  no  legislation,  in  the  ordinary  sense  of  that  word,  for  the 
society  of  nations;  nor  in  respect  to,  by  far,  the  larger  pare  of  the 
affairs  of  life  is  there  any  for  municipal  societies  j  and  yet  there  ia 


WHAT    LAW    18    TO    OOVKIIN    TIIK    DECISION ! 


avo  voliiii- 
1  tlaiinH  t<> 
ItiHiiot 
lowerhave 
y  repla«'A'd 
ts  supreme 
libt'iations 

an  those  of 
5  nation  for 
reiiared  to 
nay  declare 
the  proofs. 

e  described 
though  not 
\g  that  the 
ired,  that  it 
ut  this  may 
18  exhibited 
ular  nation, 
lions  of  the 
tion  can  not 
,tion  is  to  be 
een  two  dif- 
»f  a  tribnnal 
8.    Tt  is  im- 
38  and  rnles 
dge;  thsc.  is 
rd  of  jtistice 
national  laic, 
m.  legishvtive 
ice  whicli  is 
in  the  larger 
eneral  staud- 
;y.    There  is, 
^ord,  for  the 
pare  of  the 
yet  there  ia 


for  the  latter  un  always  existing  laip  by  which  .cry  controversy 
may  be  determined.  Tlie  only  difVu'rcMicc  «^xliil»ited  by  the  former  is 
that  it  has  no  rcguliirIy-c»»nstitutiM|  body  of  f.ipertx,  cuIIimI  Jndges, 
clothed  with  authority  to  declare  the  law.  And  this  distinction  is 
wiped  away  in  the  case  of  the  present  controvia-sy  by  the  cxmstitu- 
liuii  of  this  tribunal.  That  there  is  an  international  law  by  whicii 
evei'iv  controversy  between  nations  may  be  adjudged  and  determined 
Will  scarcely  be  questioned  anywluiro;  but  luue  no  sucli  questioning 
is*  allowabh>.  The  parties  to  tlie  controversy  are,  to  employ  a  word 
familiar  to  them,  estopped  from  raising  it.  They  have  voluntarily  made 
tuemselves  parties  to  a  judicial  proceeding.  For  wluit  puri>ose  is  it 
that  these  nations  h.-ve  submitted  rival  claims  to  judicial  decisiou  if 
there  is  no  leg:il  rule  whicli  governs  themt  Why  is  it  that  they  have 
provided  for  the  seic*;tion  of  arbitrators  prei'minent  for  their  knowl- 
edge of  law,  except  that  they  intended  that  the  law  cthould  determine 
their  rival  claimsT  Nay,  what  is  the  relevancy,  or  utility,  of  this  very 
argument  in  wliicrh  we  are  engaged  unless  there  is  an  agreed  standard 
of  justice  to  which  counsel  can  appeal  and  upon  which  they  can  hcipe 
to  convince?  The  undersigned  conceive  that  it  will  not  be  disputed 
that  this  ai'bitration  was  planned  and  must  be  conducted  upon  the  as- 
sumption that  there  is  no  place  upon  the  earth,  and  no  transaction 
either  of  men  or  nations  which  is  not  subject  to  the  dominion  of  iaw. 
Nor  can  there  be  any  substantial  difference  of  opinion  concerning 
the  sources  to  which  we  are  to  look  for  the  international  stjindard  of 
justice  which  the  undersigned  have  referred  to  as  but  another  name 
for  international  law.  Municipal  and  international  law  flow  equally 
from  the  same  source.  All  law,  whether  it  be  that  which  governs  the 
conduct  of  nations,  or  of  individuals,  is  but  a  part  of  the  great  dcmiain 
of  ethics.  It  is  founded,  in  each  case,  upon  the  nature  of  man  and  the 
environment  in  which  he  is  placed.  Tlie  formal  rules  may  indeed  be 
varied  according  to  the  differing  conditions  for  which  they  are  framed, 
but  the  spirit  and  essence  are  everywhere  and  always  the  same.  Says 
Sir  James  Mackintosh: 

The  science  which  teaches  the  rights  and  duties  of  men  and  of  states 
has  in  modern  times  been  styled  "  the  law  of  nature  and  nations."  Under 
this  comprehensive  title  are  included  the  rules  of  morality,  as  thoy  ))re- 
scribe  the  conduct  of  private  men  towards  each  other  in  all  the  various 
relations  of  human  life;  as  they  regulate  both  the  obedience  of  citi /ens 
to  the  laws,  and  the  authority  of  the  magistrate  in  framing  laws  i....i  ad- 
ministering government;  and  as  they  modify  the  intercourse  of  inde- 
pendent commonwealths  in  peace  and  prescribe  limits  to  their  hostility 


4  ARGUMENT  OF  THE  UNITED  STATES. 

in  war.    This  important  science  comprehends  only  that  part  of  private 
ethica  which  is  capable  of  being  reduced  to  fixed  and  general  rules.' 

And  Xord  13acon  has,  in  language  often  quoted,  pointed  to  the  law 
of  nature  as  the  source  of  all  human  jurisijrudence: 

For  there  are  in  nature  certain  fountains  of  justice,  whence  all  civil 
laws  are  derived  but  as  streams,  and  like  as  waters  do  take  tinctures 
and  tastes  from  the  soils  through  which  tliey  run,  so  do  civil  laws  vary 
aiicording  to  the  regions  and  governments  where  they  are  planted, 
though  they  proceed  from  the  same  fountain.* 

This  original  and  universal  source  of  all  law  is  variously  designated 
by  ditterent  writers;  sometimes  as  "the  law  of  nature,"  sometimes  as 
"natural  justic<5,"  sometimes  as  "the  dictates  of  right  reason;"  but, 
however  described,  the  same  thing  is  intended.  "The  law  of  nature" 
is  the  most  approved  and  widely  employed  term.  The  universal  obli- 
gation which  it  imposes  is  declared  by  Cicero  in  a  passage  of  lofty 
eloquence  which  has  been  the  admiration  of  jurists  in  every  succeeding 
age.3 

.And  the  same  doctrine  is  inculcated  by  the  great  teacher  of  the  laws 
of  England  in  language  which  may  have  beou  borrowed  from  the  greai 
Roman : 

This  law  of  nature  being  coeval  with  mankind,  and  dictated  by  God 
himself,  is,  of  course,  superior  in  obligation  to  any  other.  It  is  binding 
over  the  globe,  in  all  countries,  and  at  all  times;  no  human  laws  are  of 
any  validity  if  contrary  to  this,  and  sudh  of  them  as  are  valid  derive 
all  their  force  and  all  their  authority,  mediately  or  immediately,  from 
this  original.* 

The  dependencj'^  of  all  law  upon  the  law  oi"  nature  is  happily  ex- 
pressed by  Cicero  in  another  often  quoted  passage:  '■'■  Lex  est  suprenia 
ratio  insita  a  natura  qucc  jubct  ca  quco  facleiufa  sunt,  prohihetque  con- 

'  Dissertation  on  the  Law  of  Nature  and  Nations. 

'De  Angnientis  Scioutiarum. 

'"Est  quidom  vera  lex  recta  ratio  naturae  confrruens,  diffusa  in  omnes,  constans, 
Bempiterna,  quae  vocet  ad  offlciuni  jubcudo,  votuudo  a  iraude  deterreat,  quae  tameu 
netjue prolios  frustrajubet  aut  vetiit,  nee  inipvobos  jubondo  aut  vetando movet.  Huio 
leni  nee  obrogari  fas  est  uequo  derogari  ex  ^ac  aliquid  licet  neque  tota  abrogari  po- 
test, nee  vero  aut  per  sonatuiu  aut  per  populuui  solvi  bac  lege  possumus,  neque  est 
quaerendus  explaualoruut  iuterpres  ejus  alius,  nee  eritaliu  lex  Koinae,  alia  Athenis, 
alia  nunc,  alia  postbac,  sed  et  onines  gentes  et  omni  tempore  una  lex  et  senipiterua 
et  iunuutabilis  cout(nebit  uuusquisque  erit  communis  quasi  magister  et  imperatur 
omuium  deus:  ille  legis  bujus  inventor,  disceptatoi',  lator,  cui  qui  non  parebit,  ipso 
HO  fugiet  !(c  uaturcau  hominis  asperuatus  boo  ipso  lurt  maxiuias  poenas,  etiam  si 
caoteraHiippli(iaquaoputiiutur,omigerit."    (Doltepuulica,Lib.Ul.  Cap.XXII,  J33.) 

*iiluvketoue,  Ovm.,  Buvk  I,  }>.  iX. 


WHAT   LAW   IS   TO   GOVERN   THE   DECISION'? 


of  private 
I  rules.' 

)  the  law 


5  all  civil 
1  tinctures 
laws  vary 
Q  planted, 

lesignated 
iietimes  as 
ion;"  but, 
)f  nature" 
rersal  obli- 
ge of  lofty 
succeeding 

of  the  laws 
a  the  greai 


;ed  by  God 
is  binding 
laws  are  of 
ilid  derive 
ately,  from 


lappily  ex- 
3s<  suprema 
betque  con- 


traria.'"^  And  it  is  very  clearly  illnstrated  by  the  fact  that  the  groat 
expositors  of  the  Roman  law  in  seeking  for  a  concise  formula  which 
would  express  its  original  and  fundamental  principles,  have  simply 
borrowed  or  framed  a  statement  of  the  dictates  of  natural  justice: 
"e/ttm  precepta  sunt  hoec:  honesta  vivere,  alterum  non  Icedere,  suum 
vuique  tribuere.^' 

Some  writers  have  been  inclined  to  question  the  propriety  of  designat- 
ing as  law  that  body  of  principles  and  rules  which  it  is  asserted  are 
binding  upon  natious,  for  the  reason  that  there  is  no  common  superior 
power  which  may  be  appealed  to  for  their  enforcement.  But  this  is  a 
superficial  view  which  has  received  no  considerable  assent.  The  pub- 
lic opinion  of  the  civilized  world  is  a  power  to  which  all  nations  are 
forced  to  submit.  No  nation  can  afford  to  take  up  arms  in  defence  of 
an  assertio';  which  is  pronounced  by  that  opinion  to  be  erroneous.  A 
recent  writer  of  established  authority  has  well  answered  this  objection: 

It  is  sometimes  said  that  there  can  be  ud  law  between  nations, 
because  they  acknowledge  no  common  superior  authority,  no  interna- 
tioni)!  executive  capable  of  enforcing  the  precepts  of  international  law. 
This  objection  admits  of  various  answers:  First,  it  is  a  matter  of  fact 
that  states  and  nations  recognize  the  existence  and  independence  of 
each  other,  and  out  of  a  recognized  society  of  nations,  as  out  of  a  society 
of  individuals,  law  must  necessarily  spring.  The  common  rules  of  right 
approved  by  nations  as  regulating  their  intercourse  are  of  themselves, 
as  has  been  shown,  such  a  law.  Secondly,  the  contrary  position  con- 
founds two  distinct  things,  namely,  the  physical  sanction  which  law 
derives  from  being  enforced  by  superior  power,  and  the  moral  sanction 
conferred  on  it  by  the  fundamental  principle  of  right;  the  error  is 
similar  in  kind  to  that  whicli  has  ied  jurists  to  divide  moi-al  obliga- 
tions into  perfect  and  imperfect.  All  moral  obligations  are  equally 
perfect,  though  the  means  of  compelling  their  performance  is,  humanly 
speaking,  more  or  less  perfect,  as  they  more  or  less  fall  uiu'er  the  cog- 
nizance of  human  law.  In  like  manner,  international  justice  Avould 
not  be  less  deserving  of  that  appellation  if  the  sanctions  of  it  were 
wholly  incapable  of  being  enforced. 


168,  constans, 
;,  quae  tauieii 
novet.  Iluio 
I  abrogari  po- 
ms, neque  est 

alia  Athonis, 
et  sempiterua 

et  imperator 
1  parebit,  ipso 
enas,  etiam  si 
p.XXlI,433.) 


But  irrespectively  of  any  such  means  of  enforcement  the  law  must 
remain.  God  has  willed  the  society  of  States  as  He  has  willed  the  so- 
ciety of  individuals.  The  dictates  of  the  conscience  of  both  may  be 
violated  on  earth,  but  to  the  national  as  to  the  individual  consirience, 
the  language  of  a  profound  philosopher  is  applicable :  "  Hiid  it  strength 
as  it  had  right,  had  it  power  as  it  has  manifest  authority,  it  would  ab- 
solutely govern  the  world." 

•  *••••• 

Lastly,  it  may  be  observed  on  this  head,  that  the  history  of  the 
world,  and  especially  of  modem  times,  has  been  but  incuriously  and 
unprofitably  resid  by  him  who  has  not  perceived  the  certain  Nemesis 
which  overtakes  the  transgressors  of  international  justice;  for,  to  take 


» Cic.  De  Logibus,  Lib.  I,  c.  VI,  J  6. 


"Just.  I,  1.3. 


6 


ARGUMENT   OF   THE    UNITED   STATES. 


but  otio,  inatiiiico,  what  an  "  Iliad  of  woes  "  did  the  precedent  of  tlie 
first  partition  of  Tolaud  open  to  the  kingdoms  wIjo  i)articipated  in  that 
grievous  infi-actiou  of  international  law !  The  Roman  law  uobly  ex- 
piesses  a  ja:roat  moral  truth  in  the  maxim,  "  Jnrisjurandi  contempta 
religio  satis  Deiim  habet  ultorem."  The  commentary  of  a  wise  and 
learned  French  jurist  upon  these  words  is  remarkable  and  may  not  in 
aptly  close  this  first  part  of  the  work :  "  Paroles  (he  says)  qti'on  pent 
appliquer  dgalemont  il  toute  infraction  des  loix  naturelles.  La  justice 
de  I'Auteur  de  ces  loix  n'est  pas  moins  armi^^e  contre  ceux  qui  les  trans- 
gresseut  que  contre  les  violateurs  du  serment,  qui  n'ajoute  rien  a  I'obli- 
gatiou  de  les  observer,  ni  j\  la  force  de  nos  engagements,  et  qui  ne  sert 
qu'^  nous  rappeler  le  souvenir  de  cetto  justice  inexorable."  (Philli- 
more's  International  Law,  third  edition,  London,  1879,  vol.  I,  section 

LX.)' 

That  there  is  a  measure  of  uncertainty  concerning  the  precepts  of  the 
law  ofnature  and,  consequently,  in  International,  law  which  is  derived 
from  it,  is  indeed  true.  This  uncertainty  in  a  greater  or  less  degree  is 
found  in  all  the  moral  sciences.  It  is  exhibited  in  municipal  law^ 
although  not  to  so  large  an  extent  as  in  international  law.  Law  is  matter 
of  opinion ;  and  this  differs  in  different  countries  and  in  diflferent  ages, 
and  indeed  between  different  minds  in  the  same  country  and  at  the 
same  time.  The  loftiest  precepts  of  natural  justice  taught  by  the  most 
elevated  and  refined  intelligence  of  an  age  may  not  be  acquiesced  in  or 
appreciated  b^  the  majority  of  men.  It  is  thus  that  the  rules  actually 
enforced  by  municipal  law  often  fall  short  of  the  highest  standard  of 
natural  justice.  Erroneous  decisions  in  municipal  tribunals  are  of  fre- 
quent occurrence.  Such  decisions,  although  erroneous,  must  necessarily 
be  accepted  as  declarative  of  the  rule  of  justice.    They  represent  the 

'  The  duties  of  men,  of  subjecta,  of  princes,  of  lawgivers,  of  magistnitps,  and  of 
status  arc  ;ill  parts  of  oiio  eonsistiiut  system  of  universal  morality.  Between  the 
most  abstract  and  elementary  maxims  of  moral  philosophy  and  the  most  complicated 
oontrovereies  of  civil  and  public  law  there  subsists  a  connection.  The  principle  of 
justice  deeply  rooted  in  tlio  nature  and  interests  of  man  pervades  the  whole  system 
and  is  discoverable  in  every  part  of  it,  even  to  the  minutest  ramification  in  a  legal 
formality  or  in  the  construction  of  an  article  in  a  treaty. — (Sir  James  Macintosh, 
Discourse  on  the  Law  of  Nature  and. Nations,  sub  fine.) 

Mr.  Justice  f<tory  says:  "The  true  foundation  on  which  the  administration  of  iii- 
ternationiil  law  must  rest  is  that  the  rules  which  are  to  govern  are  those  wbch  arise 
fnnu  mutual  interest  and  utility,  from  a  sense  of  the  inconveniences  which  would 
result  from  a  contrary  doctrine,  and  from  a  sort  of  moral  necessity  to  do  justice  in 
order  that  justice  may  be  done  'o  us  in  return."    ((Joullict  of  Laws,  ch.  ii,  sec.  Xi.) 

And,  sitting  sis  a  judge,  he  declared :  "  Hut  I  think  it  may  be  unequivocally  affirmed 
that  every  doctriuo  that  may  be  fairly  deduced  by  correct  reivsoning  from  the  rights 
and  duties  of  nations  and  the  nature  of  moral  ob  •  tions  may  theoretically  be 
said  to  exist  in  the  law  of  nations ;  and,  unless  it  be  relaxed  or  waived  by  the  con- 
sent of  nations,  which  may  bo  evidenced  by  their  general  practice  and  custom,  it 
may  be  enforced  by  a  court  of  justice  wherever  it  arises  in  judgment."  (La  Jeune 
Eug6uie,  2  Mason's  Reports,  p.  449.) 


WHAT   LAW   IS   TO   GOVERN   THE   DECISION? 


nt  of  tlie 
2d  in  that 
nobly  ex- 
ontempta 
wise  {iiul 
ay  not  in 
n'on  pent 
ja  justice 
les  trans- 
m  a  I'obli- 
ui  ne  sert 
'  (Philli- 
I,  section 

■pts  of  the 
is  derived 
degree  ia 
i!ipal  law^ 
V  is  matter 
rent  ages, 
nd  at  the 
/  the  most 
jsced  in  or 
!S  actually 
taudard  of 
are  of  fre- 
lecessarily 
resent  the 

atp8,  and  of 
Between  the 
conipli<;atcd 
principle  of 
rholo  system 
on  in  a  le^al 
i  Macintosh, 

ratioTi  of  in- 
B  wb '  ch  arise 
ivhich  would 
io  Justice  in 
I.  ii,  sec.  35.) 
ally  afHrnied 
im  the  rights 
jretically  he 
[  by  the  con- 
id  custom,  it 
'    (La  Jeuue 


national  standard  of  justice  accepted  and  adopted  in  states  where  they 
are  pronounced.  So  far  as  they  are  wrong  they  will  ultimately  be  cor- 
rected as  nearer  api>roaches  are  made  to  the  truth.  So  also  in  inter- 
national law,  the  actual  practice  of  luitions  does  not  always  conform  to 
the  elevated  precepts  of  the  law  of  nature.  In  such  cases,  however,  the 
actual  practice  must  be  accepted  as  the  rule.  It  is  this  which  exhibits 
what  nuiy  be  called  the  int43rnational  standard  of  justice;  that  is  tosay, 
that  standard  upon  which  the  nations  of  the  world  are  agreed.  As 
municipal  law  embraces  so  much  of  natural  justice,  or  the  law  of  nature, 
as  the  municipal  society  recognizes  and  enforces  upon  its  members,  so, 
on  the  other  hand,  international  law  embraces  so  much  of  the  same  law 
of  nature  as  the  society  of  nations  recognizes  and  enforces  upon  its 
members  in  their  relations  with  each  other.  The  Supreme  Court  of  the 
United  States,  speaking  through  its  greatest  Chief  Justice,  was  obliged 
to  declare  in  a  celebrated  case  that  slavery,  though  contrary  to  the  law 
of  nature,  was  not  contrary  to  the  law  of  nations ;  and  an  English  judge, 
no  less  illustrious,  was  obliged  to  make  a  like  declaration.'  Perhaps 
the  same  question  would  in  the  present  more  humane  time  be  otherwise 
determined. 

But,  although  the  actual  practice  and  usages  of  nations  are  the  best 
evidence  of  what  is  agreed  upon  as  the  law  of  nations,  it  is  not  the  only 
evidence.  Tiiese  prove  what  nations  have  iii/aot  agreed  to  as  binding 
law.  But,  in  the  absence  of  evidence  to  the  contrary,  nations  are  to 
he  presumed  to  agree  upon  what  natural  and  universal  justice  dictates. 
It  is  upon  the  basis  of  this  presumption  that  municipal  law  is  from  time 
to  time  developed  and  enlarged  by  the  decisions  of  judicial  tribunals 
and  jurists  which  make  up  the  unwritten  municipal  jurisprudence. 
Sovereign  states  are  presumed  to  have  sanctioned  as  law  the  general 
principles  of  justice,  sind  this  constitutes  the  authority  of  municipal 
tribunals  to  declare  the  law  in  cases  where  legislation  is  silent.  They 
are  not  to  conclude  that  no  law  exists  in  any  particular  case  because  it 
has  not  been  provided  for  in  positive  legislation.  So  also  in  interna- 
tional law,  if  a  case  arises  for  which  the  practice  and  usages  of  nations 
have  furnished  no  rule,  an  international  tribunal  like  the  present  is  not 
to  infer  that  no  rule  exists.  The  consent  of  nations  is  to  be  presumed 
in  favor  of  tlie  dictates  of  natural  justice,  and  that  source  never  fails 
to  supply  a  rule. 

If  the  foregoing  observations  are  well  founded,  the  law  by  which  this 

'The  Antelope  10,  Wheaton's  Reports,  p.  120;  The  Louis,  2  Dods,  238. 


8 


AR0T15IENT   OF   THE   UNITED    STATES. 


Tribunal  is  to  be  guided  is  the  law  of  nations;  and  the  sources  to  wliicli 
we  are  to  look  for  that  law  upon  any  question  which  may  arise  are  these  : 

First.  The  actual  practice  and  usages  of  nations.  These  are  to  be 
learned  from  history  in  the  modes  in  which  their  relations  and  inter- 
course with  one  another  are  conducted ;  in  the  acts  commonly  done  by 
them  without  objection  from  other  nations;  in  the  treaties  which  they 
make  with  each  other,  although  these  are  to  be  viewed  with  circum- 
spection as  being  based  often  upon  temporary  and  shifting  considera- 
tions, and  sometimes  exacted  by  the  more  powerful  from  the  weaker 
states;  and  in  their  diplomatic  correspondence  with  each  other, in  which 
supposed  principles  of  the  law  of  nations  are  invoked  and  acceded  to. 

Second.  The  judgments  of  the  courts  which  profess  to  declare  and 
administer  the  law  ot  nations,  such  as  prize  courts  and,  in  some  in- 
stances, courts  of  admiralty,  furnish  another  means  of  instruction. 

Third.  Where  the  above  mentioned  sources  fail  to  furnish  any  rule 
resort  is  to  be  had  to  the  great  source  from  which  all  law  flows,  the 
dictates  of  right  reason,  na>  ixal  justice;  in  other  words,  the  law  of 
nature. 

Fourth.  And  in  ascertainiug  what  the  law  of  nature  is  upon  any 
particular  question,  the  municipal  law  of  States,  so  far  as  it  speaks  with 
a  concurring  voice,  is  a  prime  fountain  of  knowledge.  This  is  for  the 
reason  that  that  law  involves  the  law  of  nature  in  nearly  every  con- 
ceivable way  in  which  it  speaks,  and  lias  been  so  assiduously  cultivated 
by  the  study  of  ages  that  few  questions  concerning  right  and  justice 
among  men  or  nations  can  be  foui.u  .or  which  it  does  not  furnish  a 
solution. 

Fifth.  And,  finally,  in  all  cases,  the  concurring  authority  of  jurists  of 
established  reputation  who  have  made  the  law  of  nature  and  nations 
a  study  is  entitled  to  respect. 

Mr.  Chief  Justice  Marshall  has  expressed  from  the  bench  of  the 
Supreme  Court  of  the  United  States  what  we  conceive  to  be  the  t*  ae 
rule.    He  says: 

The  law  of  nations  is  the  great  source  from  which  we  derive  those 
rules  respecting  belligerent  and  neutral  rights  which  are  recognized 
by  all  civilized  and  commercial  states  throughout  Europe  and  America. 
This  law  is  in  part  unwritten,  and  in  part  conventional.  To  ascertain 
that  which  is  unwritten  we  recur  to  the  great  principles  of  reason  and 
justice;  but  as  these  principles  will  be  differently  understood  by  dif- 
ferent nations  under  different  circumstances,  wc  consider  them  as 
being,  in  some  degree,  rendered  fixed  and  stable  by  a  series  of  judicial 
decisions.  The  decisions  of  the  courts  of  every  country,  so  far  as  they 
are  founded  upon  a  law  common  to  every  country,  will  be  received 


WHAT   LAW   18   TO    GOVERN   THE    DKCISION'? 


9 


es  to  wliicli 
1  are  these : 
I  are  to  be 
1  and  inter- 
ly  done  by 
which  they 
th  circuni- 

considera- 
}he  weaker 
ir,  in  which 
seded  to. 
eclave  and 
in  some  in- 
iction. 
jh  any  rule 

flows,  the 
bhe  law  of 

upon  any 
peaks  with 
I  is  for  the 
every  con- 
cultivated 
md  justice 
furnish  a 

)f  jurists  of 
ad  nations 

och  of  the 
»e  the  ti^ae 


erive  those 
recognized 
d  America. 
0  ascertain 
reason  and 
)od  by  dif- 
r  them  as 
J  of  judicial 
far  as  tiiGy 
•e  received 


not  as  authority,  but  with  respect.  The  decisions  of  the  courts  of 
every  country  show  liow  the  lawof  nations,  in  the  given  case,  is  under- 
stood in  that  country,  and  will  be  considered  in  adopting  the  rule 
which  is  to  prevail  in  this.* 

James  C.  Carter. 

'  Sixty  Hogsheads  of  Sugar  v.  Boylo,  9  Cranch,  191,  197. 

The  views  stated  in  the  text  concerning  the  foundation  of  the  law  of  nations 
and  the  sources  from  which  it  is  to  ho  gathered,  are,  it  is  helieved,  supported  hy 
the  concurrent  voices  of  writers  of  estaljlished  authority.  Dill'eroncos  will  bo  found 
in  the  modes  of  statement;  but  there  seems  to  be  no  substantial  disagreonicnt.  A  col- 
lection of  extracts  from  many  writers  of  difl'ereut  nations  will  be  foaud  in  the  Appen- 
dix immediately  following. 


a. 


10 


ABOUMEMT  OF  THE   UNITED  STATES. 


APPENDIX  TO  PART  FIRST  (MR.  CARTER'S  ARGUMENT). 

CITATIONS  FROM  WRITERS  UPON  THE  LAW  OF  NATURE  AND 
NATIONS,  SHOWING  THE  FOUNDATION  OF  INTERNATIONAL 
LAW,  ITS  RELATIONS  TO  THE  LAW  OF  NATURE.  AND  THE 
SOURCES  FROM  WHICH  THE  KNOWLEDGE  OF  IT  IS  TO  BE 
DERIVED. 

[POMEROY.  Lectures  on  Interaational  Law,  ed.,  1886.,  ch.  i,  sees.  29,  30,  31,  33, 
pages  23-26.] 

Seo.  29.  (2)  A  large  number  of  rules  wliich  govern  the  mutual  rela- 
tions of  states  in  their  corporate  capacity  are  properly  called  interna- 
tional law,  on  account  of  the  objects  which  they  subserve  and  the  rights 
and  duties  they  create.  They  are  also  properly  law,  because  they  have 
been  established  by  particular  states  as  a  part  of  their  own  municipal 
systems,  and  are  enforced  by  their  judiciary  and  executive  in  the  same 
manner  as  other  portions  of  the  local  codes.  They  are  in  fact  principles 
of  the  law  of  nature  or  morality  put  in  the  form  of  human  commands, 
and  clothed  with  a  human  sanction. 

(3)  What  is  called  international  law  in  its  general  sense,  I  would 
term  international  morality.  It  consists  of  those  rules  founded  upon 
justice  and  equity,  and  deduced  by  right  reason,  according  to  which 
independent  states  are  accustomed  to  regulate  their  mutual  inter- 
cou'se,  and  to  which  they  conform  their  mutual  relations.  These 
rules  have  no  binding  force  in  themselves  as  law ;  but  states  are  more 
and  more  impelled  to  observe  them  by  a  deference  to  the  gen- 
eral i)ublic  opinion  of  Christendom,  by  a  conviction  that  they  are  right 
in  themselves,  or  at  least  expedient,  or  by  a  fear  of  provoking  hostilities. 
This  moral  sanction  is  so  strong  and  is  so  constantly  increasing  in  its 
power  and  effect,  that  we  may  with  propriety  say  these  rules  create 
rights  and  corresponding  duties  which  belong  to  and  devolve  upon  in- 
dependent states  in  their  corporate  political  capacities. 

8ec.  30.  We  thus  reach  the  conclusion  that  a  large  portion  of  inter- 
national law  is  rather  a  branch  of  ethics  than  of  positive  human  juris- 
prudence. This  fact,  however,  alfords  no  yiomiJ  for  the  jurist  or  the 
student  of  jurisprudence  to  neglect  the  science.  Indeed,  there  is  the 
greater  advantage  in  its  study.  Its  rules  are  based  upon  abstract  jus- 
tice; they  are  in  conformity  with  the  deductions  of  right  reason;  hav- 
ing no  positive  human  sani^tion  they  appeal  to  a  higher  sanction  than 
do  the  precepts  of  municipal  codes.  All  these  ^^atures  clothe  them 
with  a  nobler  character  than  that  of  the  ordinary  civil  jurisprudence, 
as  God's  law  is  more  perfect  than  human  legislation. 

Sec.  31.  The  i)receding  analysis  of  the  nature  and  charaeteristics  of 
international  law  enables  us  to  answer  the  general  question,  What  are 
its  sources?  If  we  confine  our  attention  to  that  portion  which  is  in 
every  sense  of  the  terra  strictly  international,  and  is  therefore,  as  we 
have  seen,  morality  rather  than  law,  these  sources  are  plainly  seen  to 
be:  (1)  Tiio  Divine  law;  (2)  Enlightened  reason  acting  upon  the  ab- 
stract principles  of  ethics;  and  (3)  The  consent  of  nations  in  adopting 
the  particular  rules  thus  drawn  from  the  generalities  of  the  moral  law 


1 


APPENDIX  TO   PART   FIRST. 


11 


ENT). 


PRE  AND 
ATIONAL 
^ND  THE 
S    TO    BE 


9,  30,  31,  33, 

Litual  rela- 
(1  interna- 
tbe  rights 
they  have 
muuicii>al 

I  the  same 
principles 
ommands, 

I  would 
ided  upon 
g  to  which 
tual  inter- 
s.  These 
i  are  more 

the  gen- 
y  are  right 
hostilities, 
sing  in  its 
Jes  create 
^e  upon  in- 

in  of  inter- 
imaujuris- 
rist  or  the 
lere  is  the 
)stract  jus- 
ason;  hav- 
ction  than 
otlie  them 
sprudence, 

terit^tics  of 
,  What  are 
vhich  is  in 
tore,  as  we 
Illy  seen  to 
on  the  ab- 

II  adopting 
moral  law 


by  the  aid  of  right  reason.  It  is  only  with  this  portion  of  intornational 
law  that  we  need  now  concern  ourselves.  That  other  portion  which  I  have 
already  described  as  international  only  in  its  objects,  and  strictly 
national  and  municipal  in  its  creation  and  sanctions,  springs  from  the 
same  sources  whence  all  of  the  internal  law  ot  a  particular  Stat<>  arises — 
from  legislatures  and  the  decisions  ot  courts.  We  will  then  briefly  con- 
sider these  principal  sources,  or,  if  I  may  use  the  expression,  fountains 
from  which  flow  the  streams  of  the  jus  inter  gcntes. 

Sec.  33.  (2)  Reason.  But  Uie  precepts  of  the  moral  law,  either  as  con- 
tained in  the  written  word,  or  as  felt  in  the  consciousness  of  the  liuman 
race,  are  statements  of  broad,  general  principles;  they  are  the  germs, 
the  fructifying  powers;  they  must  be  developed,  must  be  cast  in  a  more 
practical  and  dogmatic  form  to  meet  the  countless  demands  of  each  in- 
dividual, and  of  the  societies  we  call  nations.  To  this  end  we  must 
appeal  to  reason;  and  hence  the  second  source  which  I  have  mentioned, 
namely,  enlightened  reason  acting  upon  the  abstract  principles  of 
morality.  I  can  not  now  stop  to  illustrate  this  proposition ;  we  shall 
meet  many  pertinent  examples  in  the  course  of  our  investigations.  I 
wish  now,  however,  to  dwell  upon  one  fact  of  great  importance — a  fact 
which  will  help  you  to  avoid  many  difficulties,  to  reconcile  many  dis- 
crepancies, to  solve  many  uncertaincies.  This  fact  is,  that  an  interna- 
tional law  is  mainly  based  upon  the  general  principles  of  pure  morality, 
and  as  its  particular  rules  are  mainly  drawn  therefrom,  or  are  intended 
to  be  drawn  therefrom,  by  reason,  it  is,  as  a  science,  the  most  jnogres- 
sive  of  any  department  of  jurisprudence  or  legislntion.  The  improve- 
ment of  civilized  nations  in  culture  and  refinement,  the  more  complete 
understanding  of  rights  and  duties,  the  growing  appreciation  of  the 
truth  that  what  is  right  is  also  expedient,  have  told,  and  still  do  tell, 
upon  it  with  sudden  and  surprising  effect. 

The  result  is  that  doctrines  which  were  universally  received  a  gener- 
ation since  are  as  universally  rejected  now;  that  precedents  whi(;h 
were  universally  considered  as  binding  a  quarter  of  a  century  ago 
would  at  the  present  be  passed  by  as  without  force,  as  acts  which 
could  not  endure  the  light  of  more  modern  investigation.  More  par- 
ticularly is  this  true  in  respect  to  the  rules  which  define  the  rights  of 
belligerents  and  neutrals.  The  latest  works  of  Er'-opean  jurists  are, 
as  we  shall  see,  conceived  in  a  far  different  sp^irit  froin  standard  treat- 
ises of  the  former  generation.  It  was  the  entire  ignoring  or  forgetful- 
noss  of  this  evident  and  most  benign  fact  by  Mr.  Senator  Sumner, 
in  the  celebrated  and  elaborate  speech  which  he  delivered  a  few  years 
since  upon  the  international  policy  of  England,  that  rendered  the 
speech  utterly  useless  as  an  argument,  exposed  it  to  the  criticism  of 
European  jurists,  and  left  it  only  a  monunumt  of  unnecessary  labor  in 
raking  up  old  precedents  from  history,  which  no  civilized  nation  of  our 
own  day  would  quote  or  rely  upon. 

The  itoman  law,  that  wonderful  result  of  reason  working  upon  a  basis 
of  abstract  right,  is  largely  appealed  to  in  international  discussions,  as 
containing  rules  which,  at  least  by  analogy,  may  serve  to  settle  inter- 
national disputes.  No  one  can  be  an  accomplished  di])lomalist  without 
a  familiar  acquaintance  with  much  of  this  immortal  code. 

r.Fliilliinore.    Intornational  law,  1871,  ch.  iii,  pa^es  14-28.] 

XIX.  •  *  •  What  are  in  fact  the  fountains  of  international 
jurisprudencef "    •     *    * 

XX.  Grotius  enumerates  these  sources  as  being  ''  ipsa  natura,  legca 
divince,  mores,  et  pacta." 


12 


ARCiUMKNT   OF   THE   UNITED   STATES. 


In  1753  the  British  Government  made  an  answer  to  a  memorial  of  the 
Prussian  Government  wliieli  was  termed  by  Montesquieu  rqjLuse  sans 
rSpHiiue,  and  whicli  lias  been  generally  recognized  as  one  of  the  .ablest 
expositions  of  international  law  ever  embodied  in  a  state  pajier.  In 
this  memorable  document  "The  Law  ot  Nations  "is  said  to  be  founded 
upon  justice,  equity,  convenience,  and  the  reason  of  the  thing  and  cou- 
lirmed  by  long  usage. 

XXI.  These  two  statements  may  be  said  to  embrace  the  substance 
of  all  that  can  be  said  on  this  subject.    •    •    • 

XXII.  Moral  persons  are  governed  partly  by  Divine  law,  •  •  • 
which  includes  natural  law — partly,  by  positive  instituted  human  law. 
•    •    • 

States,  it  has  been  said,  are  reciprocally  recognized  as  moral  per- 
sons. States  are  therefore  governed,  in  tlieir  mutual  relations,  partly 
by  Divine  and  partly  by  i)ositive  law.  Divine  law  is  either  (1)  that 
which  is  written  by  the  finger  of  God  on  the  heart  of  man,  when  it  is 
called  natural  law  ;  or  (2)  that  which  has  been  miraculously  made 
known  to  him.    •    *    • 

XXIII.  The  primary  source,  then,  of  international  jurisprudence  is 
Divine  law. 

XXVI.  *  •  *  Cicero  maintains  that  God  has  given  to  all  men 
conscience  and  intellect;  that  where  these  exist,  a  law  exists,  of  which 
all  men  are  common  subjects.  Where  there  is  a  common  law,  he  argues, 
there  is  a  common  right,  binding  more  closely  and  visibly  upon  the  mem- 
bers of  each  separate  state,  but  so  knitting  together  the  universe,  ''  ut 
jam  universuH  hie  mundus  una  civitatt  sit,  communis  Deorum  atque  homi- 
num  existimandaJ" 

That  law,  this  great  jurist  says,  is  immortal  and  unalterable  by  prince 
or  people.    *    •    • 

XXXI.  This  would  be  called  by  many  who  have  of  late  years  written 
on  the  science,  international  morality;  they  would  restrict  the  term  laic 
absolutely  and  entirely  to  the  treaties,  the  customs,  and  the  practice  of 
nations. 

K  this  were  a  mere  question  as  to  the  theoretical  arrangement  of 
the  subject  of  international  law,  it  would  be  of  but  little  imi)ortance. 

•  •  *  But  it  is  of  great  practical  importance  to  mark  the  sub- 
ordination of  the  law  derived  from  the  consent  of  states  to  the  law  de- 
rived from  God. 

XXXII.  •  •  •  Another  practical  consequence  is  that  the  law 
derived  from  the  consent  of  Christian  states  is  restricted  in  its  opera- 
tion by  the  divine  law;  and  just  as  it  is  not  morally  comiietent  to  any 
individual  state  to  make  laws  which  are  at  variance  with  the  law  of 
God,  whether  natural  or  revealed,  so  neither  is  it  morally  competent  to 
any  assemblage  of  states  to  make  treaties  or  adopt  customs  which  con- 
travene that  law. 

Positive  law,  whether  national  or  international,  being  only  declara- 
tory, may  add  to,  but  can  not  take  from,  the  prohibitions  of  divine 
law.  '■'■(jivilis  ratio  civilia  qiiidem  jura  corrumperc  potest,  naturalia 
non  utique,"  IB  the  language  of  Koman  law;  and  is  in  harmony  with 
the  voice  of  international  jurisprudence  as  uttered  by  Wolff:  ^^Absit 
vero,  ut  existimes,  jus  gentium  voluntarium  ab  curum  voluntate  itaprofis- 
oisci,  ut  libera  sit  earum  in  eodem  condendo  voluntas,  ct  stet  pro  ratione 
sola  voluntas,  nulla  habita  ratione  juris  naturalis.''^ 

XXXIII.  This  branch  of  the  .subject  may  be  well  concluded  by  the 
invocation  of  some  high  authorities  from  the  jurisprudence  of  all 
couutries  in  support  of  the  foregoing  opinion. 


APPENDIX  TO   PART   FIRST. 


13 


rial  of  the 
)i.  use  nans 
;lie  ablest 
aper.  In 
e  founded 
;  and  cou- 

substance 

*    •    • 
iman  law. 

noral  per- 
ns, partly 
gr  (1)  that 
when  it  is 
Lsly  made 

nidence  is 

bo  all  men 
,  of  which 
he  argues, 
I  the  mem- 
verse,  ''  ut 
itque  homi- 

p  by  prince 

rs  written 

term  law 

)ractice  of 

gement  of 
iportance. 
the  sub- 
le  law  de- 

i.t  the  law 
its  opera- 
ent  to  any 
the  law  of 
(ipetent  to 
vhich  con- 

y  declara- 
of  divine 
naturaUa 
nony  with 
ff:  ^^Absit 
ita  profis- 
ro  ratione 

ed  by  the 
ice  of  all 


Grotius  says  emphatically:  ^^Nimirnm  humana  jura  mvlta.  comtit- 
uerepossunt  pb^teb  naturam,  OONTBA  nihil." 

John  Voet  speaks  witli  great  energy  to  the  same  ettect:  '^^  Quod  si 
contra  recUe  rationis  dictamen  t/entcs  VHU  qua'dum  intr<»du.rerint,  NON  ea 
jus  gentium  rcctd  du'eris,  SED  pessimam  potius  morum  itumani  gen- 
eris OOREUPTELAM." 

Suarez,  who  lias  discussed  the  philosophy  of  law  in  a  chapter  which 
contains  the  germ  of  most  that  has  been  written  upon  the  subject, 
says:  '■^  Leges  autcm  ad  jus  gentium  rertinentes  vera;  leges  sunt,  ut  expli- 
catum  manet,  propinquiores  sunt  legi  naturali  quam  leges  civiles,  ideoque 
iinpossibile  est  esse  contrarias  wquitati  naturali.^^ 

Wolff,  speaking  of  his  own  time,  saj  s :  '•  Omnium  ferd  animos  occupavit 
perversa  ilia  opinio,  quasi  pons  juris  gentium  sit  utilitas  pro- 
pria; undue  contingit,  idpotentice  coceqtiari.  Damnanius  hoc  in  privatis, 
damnamus  in  rectore  civitatis^  sed  iEQUE  idem  damnandum  est  in 

GENTIBUS." 

Mackintosh  nobly  sums  up  this  great  argument:  "  The  duties  of  men, 
of  subjects,  of  i>rinces,  of  lawgivers,  of  magistrates,  and  of  states,  are 
all  parts  of  one  consistent  system  of  universal  moniiify.  Between  the 
most  abstract  and  elementary  maxim  of  moral  pi  iksophy,  and  the 
most  complicated  controversies  of  civil  or  public  la^v,  tli^re  subsists  a 
exjnnection.  The  principle  of  justice,  deeply  rootetl  in  the  nature  and 
interest  of  mail,  pervades  the  whole  system,  and  is  discoverable  in  every 
part  of  it,  even  to  its  minutest  ramification  in  a  legal  formality,  or  in 
the  construction  of  an  article  in  a  treaty.'* 

[Henry  Sumner  Maine,  International  Law,  pages  13-47.] 

In  modern  days  the  name  of  International  Law  has  been  very  much 
confined  to  rules  laid  down  by  one  particular  class  of  writers.  Tliey 
may  be  roughly  said  to  begin  in  the  first  half  of  the  seventeenth  cen- 
tury, and  to  run  three  parts  through  the  eighteenth  century.  The 
UJimes  which  most  of  us  know  are,  first  of  all  that  of  the  great  Hugo 
Grotius,  followed  by  Puffendorf,  Leibnitz,  Zouch,  Selden,  Wolf,  Bynker- 
shoek,  and  Vattel.  The  ;ist  does  not  absolutely  begin  with  Grotius, 
nor  does  it  exactly  end  with  Vattel,  and  indeed,  as  regards  the  hither 
end  of  this  series  the  assumption  is  still  made,  and  I  think  not  quite 
fortunately,  that  the  race  of  law-creating  jurists  still  exists.  *  #  • 
Their  [the  writers  nauied  and  a  few  others]  system  is  that  couventiou- 
ally  known  as  International  Law. 

A  great  part,  then,  of  International  Law  is  Eoman  law  spread  over 
Europe  by  a  process  exceedingly  like  that  which  a  few  centuries  earlier 
had  caused  other  portions  of  lioman  law  to  filter  into  the  interstices  of 
every  European  legal  system.  The  Eoman  element  in  International 
Law  belonged,  however,  to  one  special  province  of  the  Roman  system, 
that  which  the  Romans  themselves  called  natural  law,  or,  by  an  alter- 
native name.  Jus  Gentium.  In  a  book  published  some  years  ago  on 
"  Ancient  Law"  I  made  this  remark :  "  Setting  aside  the  Treaty  Law  of 
Nations,  it  is  surprising  how  large  a  part  of  the  system  is  made  up  of 
pure  J\oman  law.  Wherever  there  is  a  doctrine  of  the  lioman  juris- 
consults ailirmedby  them  to  be  in  harimmy  with  the  Jus  Gentium,  the 
Publicists  have  tbund  a  reason  for  borrowing  it,  however  plainly  it 
may  bear  the  mark  of  a  distinctive  Roman  origin."    •     •     *    * 

Seen  in  the  light  of  stoical  doctrine  the  law  of  nations  came  to  be 
ideu tilled  with  the  law  of  nature;  that  is  to  say,  with  u  number  of  sup- 


u 


AUGUMENT   OP   THE    UNITED   STATES. 


posed  principles  oleonduct  wh'w.U  man  in  society  obeys  simply  becanse 
he  is  man.  Tims  the  law  of  natiue  is  simply  t)ie  law  of  nations  seen 
in  the  li}>:ht  of  a  peenliar  theory.  A  passage  in  the  Koman  institutes 
shows  that  tlie  exi)re8sion8  were  practically  convertible.  The  greatest 
function  of  the  law  of  nature  was  discharged  in  giving  birth  to  modern 
international  law.    •    •    * 

The  impression  that  the  Koman  law  sustained  a  system  of  what 
would  now  be  called  internatioiiid  law,  and  that  this  system  was  iden- 
tical with  the  law  of  nature  had  undoubtedly  much  influence  in  causing 
the  rules  of  what  the  Itomans  called  natural  law  to  be  engrafted  on,  and 
ideutitied  with,  the  modern  law  of  nations  (page  28). 

It  is  only  necessary  to  look  at  the  earliest  authorities  on  international 
law,  in  the  "  De  Jure  Belli  et  Piicis"  of  Grotius  tor  example,  to  see 
that  the  law  of  nations  is  essentially  a  moral  and,  to  some  extent,  a 
religious  system.  The  appeal  of  Grotius  is  almost  as  frequent  to  morals 
and  religion  as  to  precedent,  and  no  doubt  it  is  these  iiortions  of  the 
book  ♦  *  •  which  gained  for  it  much  of  the  authority  which  it 
ultimately  obtained.    (Page  47.) 

[From  Whoaton,  International  Law,  part  I,  oh.  I,  sees.  4, 14.] 

The  princi])les  and  details  of  international  morality,  as  distinguished 
from  international  law,  sire  to  be  obtained  not  by  applying  to  nations 
the  rules  which  ought  to  govern  the  conduct  of  individuals,  but  by  as- 
certaining what  are  the  rules  of  international  conduct  which,  on  the 
whole,  best  promote  the  general  happiness  of  mankind. 

International  law,  as  understood  among  civilized  nations,  may  be  de- 
fined as  consisting  of  those  rules  of  conduct  which  reason  deduces,  as 
consonant  to  justice,  from  the  nature  of  the  society  existing  among 
independent  nations;  with  such  definitions  and  modifications  as  may 
be  established  by  general  consent. 

[Kent's  Commentaries,  Part  i,  lect.  1,  pages  2-4.] 

•  •  *  The  most  useful  and  practical  part  of  the  law  of  nations  is, 
no  doubt,  instituted  or  positive  law,  founded  on  usage,  consent,  and 
agreement.  But  it  would  be  improper  to  separate  this  law  entirely 
from  natural  jurisprudence  and  not  to  consider  it  as  deriving  much  of 
its  force  and  dignity  from  the  same  principles  of  right  reason,  the  same 
views  of  the  nature  and  constitution  of  man,  and  the  same  sanction  of 
divine  revelation,  as  those  from  which  the  science  of  morality  is  deduced. 
There  is  a  natural  and  a  positive  law  of  nations.  By  the  former  every 
state,  in  its  relations  with  other  states,  is  bound  to  conduct  itself 
with  justice,  good  faith,  and  benevolence;  and  this  application  of  the 
law  of  nature  has  been  called  by  Vattel  the  necessary  law  of  nations, 
because  nations  are  bound  by  the  law  of  nature  to  observe  it;  and  it  is 
termed  by  others  the  internal  law  of  nations,  because  it  is  obligatory 
upon  them  in  point  of  conscience. 

We  ought  not,  therefore,  to  separate  the  science  of  public  law  from 
that  of  ethics,  nor  encourage  the  dangerous  suggestion  that  govern- 
ments are  not  so  strictly  bound  by  the  obligations  of  truth,  justice,  and 
humanity,  in  relation  to  other  powers,  as  they  .are  in  the  management  of 
their  own  local  concerns.  States  or  bodies  politic  are  to  be  considered 
as  moral  persons,  having  a  public  will,  capable  and  free  to  do  right  and 
wrong,  inasmuch  as  they  are  collections  of  individuals,  each  of  whom 
carries  with  him  into  the  service  of  the  community  the  same  binding 
law  of  morality  and  religion  which  ought  to  coutrol  his  conduct  in  pri- 


APPENDIX   TO   PART   FIRST. 


15 


y  becaiiRo 

iiiHtitiiteH 
B  grtiateMt 

0  uioderu 

1  of  wliat 
was  itlen- 
11  causing 
jd  on,  and 

irnational 
e,  to  see 
extent,  a 
to  morals 
ns  of  the 
wLicli  it 


nguislied 
nations 
ut  by  as- 
i,  on  the 

ay  be  de- 
duces, as 
among 
}  as  may 


ations  is, 
sent,  and 
'  entirely 

much  of 
the  same 
nction  of 
deduced, 
ler  every 
ict  itself 
)n  of  the 

nations, 
and  it  is 
)ligatory 

aw  from 
govern - 
fcice,  and 
sment  of 
nsidered 
ight  and 
jf  whom 
binding 
t  in  pri- 


vate life.  The  law  of  nations  is  a  complex  system,  composed  of  various 
ingredients.  It  consists  ()f  general  principles  of  right  and  Justice, 
eipmlly  suitable  to  the  government  of  individuals  in  a  state  of  natural 
equality  and  to  the  relations  and  conduct  of  nations;  of  a  collection  of 
usiiges,  customs,  und  opinions,  the  gn)wth  of  civilization  and  commerce, 
and  of  a  code  of  conventional  or  positive  law. 

In  the  absence  of  these  latter  regulations,  the  intercourse  and  con- 
uiict  of  nations  are  to  be  governed  by  princii)les  fairly  to  be  deduced 
from  the  rights  and  duties  of  nations  rnd  the  natun^  of  moral  obliga- 
tion; and  we  have  the  authority  of  the  lawyej's  of  antiquity,  and  of 
some  of  the  first  masters  in  the  modern  school  of  public*  law,  for  plac- 
ing the  moral  obligation  of  nations  and  of  individuals  on  similar 
grounds,  and  for  considering  individual  and  national  morality  as  parts 
of  one  and  the  same  science. 

The  law  of  nations,  so  far  as  it  is  founded  on  the  i>rinciples  of  natural 
law,  is  equally  binding  in  every  age  and  upon  all  nutnkind.    •    *    • 

[Halleok,  lutcrnatioual  Law,  ch.  ii,  sec.  13,  page  50,  and  boo.  18,  page  54.] 

Seo.  13.  It  is  admitted  by  all  that  there  is  no  univ<'rsal  or  immutable 
law  of  nations,  binding  upon  the  whole  human  race,  which  all  nuinkind 
in  all  ages  and  countries  have  recognized  and  obeyed.  Nevertheless, 
there  are  certain  principles  of  action,  a  certain  distinction  between 
right  and  wrong,  between  justice  and  injustice,  a  certain  divine  or 
natural  law,  or  rule  of  right  reason,  which,  in  the  words  of  Cicero,  "is 
congenial  to  the  feelings  of  nature,  diffused  among  all  men,  uniform, 
eternal,  commanding  us  to  our  duty,  and  prohibiting  every  violation  of 
it;  one  eternal  and  immortal  law,  which  can  neither  be  repealed  nor 
derogated  from,  addressing  itself  to  all  nations  and  all  ages,  deriving 
its  authority  from  the  counnon  Sovereign  of  the  universe,  seeking  no 
other  lawgiver  and  interpreter,  carrying  home  its  sanctions  to  every 
breast,  by  the  inevitable  punishment  He  inflicts  on  its  transgressors." 

It  is  to  these  principles  or  rule  of  right,  reason,  or  natural  law,  that 
all  other  laws,  whether  founded  on  custom  or  treaty,  must  be  referred, 
and  their  binding  force  determined.  If,  in  accordance  with  the  spirit 
of  this  natural  law,  or  if  innocent  in  themselves,  they  are  binding  upon 
all  who  have  adopted  them ;  but  if  they  are  in  violation  of  this  law,  and 
are  unjust  in  their  nature  and  ettects,  they  are  without  force.  The  prin- 
ciples of  natural  Justice,  applied  to  the  conduct  of  states,  considered  as 
moral  beings,  must  therefore  constitute  tlio  foundation  upon  which  the 
customs,  usuages,  and  conventions  of  civilized  and  christian  nations 
are  erected  into  a  grand  and  lofty  temple.  The  character  and  dura- 
bility of  the  structure  must  depend  upon  the  skill  of  the  architect  and 
the  nature  of  the  materials;  but  the  foundation  is  as  broad  as  the  i)rin- 
ciples  of  justice,  and  as  immutable  as  the  law  of  God. 

Sec.  18.  The  first  source  from  which  are  deduced  the  rules  of  con- 
duct which  ought  to  be  observed  between  nations,  is  the  divine  laic,  or 
l)rinciple  of  Justice,  which  has  been  defined  "  a  constant  and  i)erpctual 
disposition  to  render  every  man  his  due."  The  peculiar  nature  of  the 
society  existing  among  independent  states,  renders  it  more  difficult  to 
apply  this  principle  to  them  than  to  individual  members  of  the  same 
state;  and  there  is,  therefore,  less  unitbrmity  of  opinion  with  respect  to 
the  rules  of  international  law  properly  deducible  from  it,  than  with 
respect  to  the  rules  of  moral  law  governing  the  intercourse  of  indi- 
vidual men.  It  is,  perhaps,  more  ])roperly  sjieaking,  the  test  by  which 
the  rules  of  positive  international  law  are  to  be  judged,  rather  than  the 


IG 


AU(SUMENT    OF   THE    UNITED   STATES. 


Bourcefroin  wlii<!l»  these  rules  themselves  are  deduced.  (Justinian,  In- 
stitutes, lil>.  1,  tit.  I ;  rhiilimore,  Ou  Int.  Law,  Vol.  i,  sec.  23;  Dymond, 
Trin.  of  Morality,  Kssay  1,  pt.  2,  ch.  4;  Manning,  Law  of  Nations,  pp. 
57-58;  Cotelle,  Droit  des(iens,  pt.  1;  Ilcinuccius,  Elcmonta  Juiiti  !Nat. 
et  Gent.,  lib.  1,  cap.  I,  sec.  12.) 

[WoolHey :  lutrudiictioii  International  Law,  ed.  1892,  seo.  16,  pago  14.] 

Seo.  15.  •  *  •  But  what  are  the  rational  and  moral  grounds  of 
international  lawT  As  we  have  seen,  they  are  tiiesame  in  general  with 
those  on  which  the  fights  and  obligations  of  individuals  in  the  state 
and  of  the  single  state  towards  the  individuals  of  which  it  consists, 
repose.  If  we  define  natural  jm  to  be  the  science  which  from  the 
nature  and  destiMati(ni  of  man  determines  his  external  relations  in 
society,  both  the  question,  What  ought  to  be  the  rights  and  obligations 
of  the  indi'  lual  in  the  state?  and  the  question.  What  those  of  a  state 
among  stii  ought  to  bef  fall  within  this  branch  of  science.  That 
there  are  si.  u  rights  and  obligations  of  states  will  hardly  be  doubted 
by  those  who  admit  that  these  relations  of  latural  justice  exist  in  any 
case.  There  is  the  same  reason  why  they  should  be  applied  in  regulat- 
ing the  intercourse  of  states  as  in  regulating  that  of  individuals. 

There  is  a  natural  destination  of  states,  and  a  divine  purpose  in  their 
existence,  which  makes  it  necessary  that  they  should  have  certain 
ftmctions  and  powers  of  acting  \viiiun  a  certain  sphere,  which  external 
force  may  not  invii'le.  It  would  be  strange  if  the  state,  that  jwwer 
which  defines  lights  and  makes  them  real,  which  creates  moral  persons 
or  associations  witii  rights  and  obligations,  should  have  no  such  rela- 
tions of  its  own — should  be  a  physical  and  not  a  moral  entity.  In  fact, 
to  take  the  opposite  ground  would  be  to  mfiintain  that  there  is  no  right 
and  wrong  in  the  intercourse  of  states,  and  to  leave  their  conduct  to 
the  sway  of  mere  convenience. 

[Wolflf,  quoted  by  Vattel,  preface  to  seventh  American  ed.,  page  ix.] 

Nations  do  not,  in  their  mutual  relations  to  each  other,  acknowl- 
edge any  other  law  than  that  which  nature  herself  I  is  established. 
Perhaps,  therefore,  it  may  appear  superfluous  to  give  a  treatise  on  the 
law  of  nations  as  distinct  from  the  law  of  nature.  But  those  who 
entertain  this  idea  have  not  sufficiently  studied  the  subject.  Nations, 
it  is  true,  can  only  be  considered  as  so  many  individual  persons  living 
together  in  the  state  of  nature;  and,  for  that  reason,  we  must  apply 
to  them  all  the  duties  and  rights  which  nature  prescribes  and  attributes 
to  men  in  general,  as  being  naturally  born  free,  and  bound  to  each 
other  by  no  ties  but  those  of  nature  alone.  The  .'aw  which  arises  from 
this  application,  and  the  obligations  resulting  from  it,  proceed  from 
that  inimutable  law  founded  on  the  nature  of  man ;  and  thus  the  law  of 
nations  certainly  belongs  to  the  law  of  nature;  it  is,  therefore,  on  ac- 
count of  its  origin,  called  the  natural,  and,  by  reason  of  its  obligatory 
force,  the  necessary,  law  of  nations.  That  law  is  common  to  all  nations; 
and  if  any  one  of  them  does  not  respect  it  in  her  actions,  she  violates 
the  common  rights  of  all  the  others. 

But  nations  or  sovereign  States  being  moral  persons  and  the  subjects 
of  the  obligations  and  rights  resulting,  in  virtue  of  the  law  of  nature, 
from  the  act  of  association  which  has  formed  the  political  body,  the 
nature  and  essence  of  these  moral  persons  necessarily  dift'er,  in  many 
respects,  from  the  nature  and  essence  of  the  physical  individuals,  or 


APPENDIX   TO   PART   FIRST. 


17 


men,  of  wliom  tliey  are  coinposed.  When,  thoreforo,  we  would  apply  to 
uatious  the  duties  whicli  the  law  of  nature  preHeribes  to  individual 
man,  and  the  rights  it  confers  on  him  in  order  to  enable  him  to  fulltll 
his  duties,  since  those  rights  and  those  duties  can  be  no  other  than 
what  are  consistent  with  the  nature  of  their  subjects,  they  mii;<t,  in 
tlieir  application,  necessarily  undergo  a  change  suitable  to  the  new  sub- 
jects to  which  they  are  applied.  Thus,  we  see  that  the  law  of  nations 
does  not,  in  every  particular,  renuiin  the  same  us  the  law  of  nature, 
regulating  the  actions  of  indivi<luals.  Why  nuiy  it  not,  therefore,  be 
separately  treated  of  as  a  law  jicculiar  to  nationst 

[From  "De  J  Droits  ot.  des  De\oirs  iU'8  Niitions  Nontres  en  Tomps  do  Oimrre  Mari- 
time, "  par  L.  B.  Huutol'euillo,  1848,  vol.  I,  i>iige8  46,  12  et  seq.    TrauHlution.] 

He  (God)  has  given  to  nations  and  to  those  who  govern  them  a  law 
which  they  are  to  observe  towards  eacih  other,  an  unwritten  law,  it  is 
true,  but  a  law  which  He  has  taken  care  to  engrave  in  indelible  char- 
acters in  the  heart  of  every  man,  a  law  which  causes  every  human 
being  to  distinguish  wh.at  is  true  from  what  is  false,  what  is  just  from 
what  is  unjust,  and  what  is  beautiful  from  what  is  not  beautiful.  It  is 
the  divine  or  natural  law;  it  constitutes  what  I  shall  call  primitive 
law. 

This  law  is  the  only  basis  and  the  only  source  of  international  law. 
By  going  back  to  it,  and  by  carefully  studying  it,  we  may  succeed  in 
retraining  the  rights  of  nations  with  accuracy.  Every  other  way  leads 
infallibly  to  error,  to  grave,  nay,  deplorable  error,  since  its  immediate 
result  is  to  blind  nations  and  their  rulers,  to  lead  them  to  misunder- 
stand their  duties,  to  violate  them,  and  too  often  to  shed  torrents  of  hu- 
man blood  in  order  touphold  unjust  pretensions.  The  divine  law  is  not 
written,  it  has  never  been  formulated  in  any  human  language,  it  has 
never  been  promulgated  by  any  legislator;  in  fact,  this  has  never  been 
possible,  because  such  legislator,  being  man  and  belonging  to  a  nation, 
was  from  that  very  fact  without  any  authority  over  other  nations,  and 
had  no  power  to  dictate  laws  to  them. 

This  lack  of  a  positive  text  has  led  some  publicists  to  deny  the 
existence  of  the  natural  law,  and  to  reject  its  application.  They  have 
baser  Mieir  action  in  so  doing  more  particularly  upon  the  different  way 
in  which  each  individual  interprets  that  law,  according  as  his  organiza- 
tion is  more  or  less  perfect,  more  or  less  powerful,  if  I  may  thus  express 
myself;  hence,  it  results  that  this  law  is  different  for  each  individual 
and  for  each  nation,  that  is  to  say,  that  it  does  not  exist.  One  of  these 
writers,  in  support  of  his  denial  of  the  natural  laM',  lays  down  the  prin- 
ciple that  man  brings  nothing  with  him  into  this  world  except  feelings 
of  pain  or  pleasure,  and  inclinations  that  seek  to  be  satisfied,  which  can 
never  be  entitled  to  the  name  of  laws,  since  they  vary  according  to  the 
organization  of  each  individual,  because  they  are  by  no  means  the  same 
among  all  nations  and  in  all  climates.^ 

These  opinions  would  perhaps  have  some  appearance  of  reason  if  the 
natural  law  were  represented  as  a  written  system  of  legislation  or  as  a 
complete  code  similar  to  those  which  govern  human  society  and  the 
members  who  compose  it.    Then  it  might  be  said  with  Moser:  "What 

'  What  is  natural  in  man  is  liis  feelings  of  pain  or  pleaflure,  bis  inclinations;  Lutto 
callthfsc  feelinpn  inul  inolinations  laws,  is  to  introduce  a  false  and  dangerous  view 
and  to  put  lang!!;:-;  in  cKiitradiction  with  itself,  for  laws  must  be  made  for  the  very 
purpose  of  repr»'«eing  these  inclinations.  *  •  *  (Jeremy  Beuthom,  Falae  Mauaer 
of  KeiUMMMUg  «L  Maitcra  of  Legislution.) 

-2 


18 


ARGUMKNT    OF   THE    UJ''    ED   STATES. 


is  this  law  which  is  ao  much  talked  about?    Must  we  seek  its  princi- 
ples in  Grotius  or  Hobbes?"' 

Some  one  might  ask  to  see  that  code  which  is  destined  to  prevent  all 
wars  by  foreseeing  and  condemning  all  unjust  claims  in  advance.  It 
is  not  thus,  however,  that  the  natural  law  is  presented  by  thoso  au- 
thors who  have  taken  its  teachings  as  the  basis  of  their  writings;  they 
have  never  sought  to  give  it  a  body  or  to  put  it  in  the  form  of  a  v  ritten 
law.  What  is  true,  and,  in  my  ojiinion,  incontestable,  is  that  notions 
of  what  is  just  and  what  is  unjust  are  found  in  all  men;  it  is  that  all 
individuals  of  the  human  race  that  are  in  the  enjoyment  of  reason  have 
these  notions  graven  upon  their  hearts,  and  that  they  bring  with  them 
into  the  world  when  they  are  born.  These  notions  do  not  extend  to 
all  the  details  of  law  as  do  civil  laws,  but  they  Jiave  reference  to  all 
the  most  prominent  points  of  law,  if  I  may  thus  express  myself. 

It  can  not  be  denied  that  the  idea  of  i)roperty  is  a  natural  and  innate 
idea.  The  same  is  the  case  with  the  idea  which  impels  every  individ- 
ual to  exercise  care  for  his  own  preservation  with  that  which  forbids 
men  to  enrich  themselves  at  the  expense  of  others;  which  imposes  the 
obligation  to  repair  a  wrong  done  to  one's  fellow-man,  to  perform  a 
promise  made,  etc.,  etc.  These  first  and  innate  notions,  which  every, 
man  brings  with  him  into  the  world  Avlien  he  is  born,  are  Ihe  preeepts 
of  the  natural  law;  and  human  laws  are  all  the  more  perfect  the  nearer 
they  approach  to  these  divine  prec^epts.  The  natural  or  diviwe  law  is 
the  only  one  that  can  be  applied  among  nations — among  beings  free  from 
every  bond  and  having  no  interest  in  common. 

From  these  general  rules  of  divine  law  it  is  easy  to  form  secondary 
laws  having  for  their  object  the  settlement  of  all  questions  tluit  can 
arise  among  all  the  peoples  of  the  universe.  T.;  cite  but  a  single  exam- 
ple, it  is  evident  that  from  the  principle  of  the  law  eman  n  ting  from  God, 
that  every  nation  is  free  and  independent  of  every  other  nation  (which 
principle  is  recognized  by  all  men),  this  consequence  ressults,  which  is 
necessary  and  absolute,  as  is  the  principle  itself,  viz:  That  every  na- 
tion may  freely  exchange  its  superHnous  possessions,  trade  with  whom- 
soever it  may  choose  to  seek  in  order  to  make  such  exchan,a;e  and  to 
carry  on  such  trnde,  without  being  under  any  necessity  of  applying  for 
the  permission  of  a  third  nation.  The  only  condition  that  it  must  ful- 
fill is  that  it  must  obtain  the  conf  entof  the  other  party  to  the  contract. 
It  need  not  trouble  itself  about  the  annoyance  tiiat  sucli  excliange  may 
cause  a  third  nation,  provided  such  trade  does  not  interfere  with  the 
positive  and  natural  rights  of  such  nation. 

This  second  rule  gives  rise  to  several  others  which  are  as  clear  and 
absolute  as  it  is  itself.  In  a  word,  all  international  law  is  the  outgrowth 
of  natural  and  primitive  law.  Viewed  in  this  light,  it  seems  to  me  im- 
possible to  dispute  the  existence  of  the  primitive  law;  it  is  a  kind  of 
mathematical  truth,  and  I  do  not  fear  to  reply  to  Moser;  the  principles 
of  this  law  are  not  only  in  Grotias  and  Hobbes,  but  they  are  in  the 
hearts  of  all  men,  they  are  in  the  heart  of  you  who  ask  where  they  are 
found. 

International  law  is,  therefore,  based  upon  the  divine  and  primitive 
law;  it  is  all  derived  from  this  soiuce.  By  the  aid  of  this  single  law,  I 
firmly  believe  that  it  is  not  only  possible,  but  even  easy,  to  regulate  all 
relations  that  exist  or  may  exist  among  the  nations  of  the  universe. 
This  common  and  positive  law  contains  all  the  rules  of  justice;  it  exists 


'  (Moser,  "Esa.ai  sur  lo  droit  rtcs  gous  dos  plus  modoruos  des  uations  europdeuueN 
en  puix  et  eu  guerre,  177»-1780.")  ■ 


APPENDIX    TO    PART    FIRST, 


19 


)nnci- 

int  all 
It 
so  au- 

they 
ritten 
:)tion8 
at  all 

have 

them 

nd  to 

to  all 


i 


JL 


inrlopendeTitly  of  aM  legislation  of  all  human  institutions,  and  it  is  one 
for  all  nations.  It  governs  peace  and  war,  and  traces  the  rights  and 
duties  of  every  position.  The  rights  which  it  gives  are  clear,  positive, 
and  absolute;  they  are  of  such  a  nature  as  to  reciprocally  limit  each 
other  without  ever  coming  into  collision  or  contradiction  with  each 
other;  they  are  coi'relative  to  each  other,  and  are  coord'nated  and 
linked  with  the  most  perfect  harmony.  It  can  not  be  otherwise.  He 
Avho  has  arranged  all  the  parts  of  the  universe  in  so  admirable  a  man- 
ner, the  Creator  of  the  world,  could  not  contradict  himself. 

*  *  *  «  «  *  • 

The  natural  law  is,  from  its  very  nature,  always  obligatory.  The 
treaties  which  recall  its  provisions  and  regulate  their  application  must 
necessarily  have  the  same  perpetuity,  since,  even  if  they  should  cease 
to  exist,  the  principles  would  not  cease  to  be  executory  just  as  they 
were  when  the  stipulations  were  in  force.    *    *    * 

Certain  usages  have  become  established  among  civilized  nations 
without  ever  having  been  written  in  any  treaty,  and  without  ever  hav- 
ing formed  the  subject  of  any  special  and  express  agreement.  These 
usages,  few  in  number,  in  harmony  w  ith  primitive  law,  whose  applica- 
tion they  serve  to  regulate,  form  a  part  of  international  law  which  might 
be  called  the  law  of  custom;  it  seems  to  me  preferable  to  consider  them 
as  a  part  of  secondary  law. 

[From  "  Le  Droit  de  la  Nature  et  des  Gens,"  par  le  Baron  de  Pufendorf,  traduit  da 
Latin  par  Jean  Barbeyrac.  5th  ed.,  Vol.  1,  Book  2,  chap.  3,  sec.  23,  pages  243  et  seq. 
Translation.] 

FinsiUy,  we  must  further  examine  here,  whether  there  is  a  positive 
law  of  nations,  different  from  the  natural  law.  Learned  men  are  not 
well  agreed  on  this  subject.  Many  think  that  the  natural  law  and  the 
law  of  nations  are,  in  point  of  fact,  but  one  and  the  same  thing,  and 
that  they  differ  in  name  only.  Thus,  Hobbes  divides  the  natural  law 
into  natural  law  of  man  and  natural  law  of  states.  The  latter,  in  his 
opinion,  is  what  is  called  the  law  of  nations.  "The  maxims,"  adds  he, 
"  of  both  these  laws  are  precisely  the  same;  but  as  states,  as  soon  as 
they  are  found,  acquire,  to  a  certain  extent,  personal  characteristics, 
the  same  law  that  ib  called  natural,  when  the  duties  of  private  indi- 
viduals are  mentioned,  is  called  the  law  of  nations  when  reference  is 
made  to  the  whole  body  of  a  state  or  nation." 

I  fully  subscribe  to  tliis  view,  and  I  recognize  no  other  kind  of  volun- 
tary or  positive  international  law,  at  least  none  having  force  of  law,  prop- 
erly so  called,  and  binding  upon  nations  as  emanating  from  a  superior. 
There  is,  in  fact,  no  variance  between  our  opinion  and  that  of  certain 
learned  men  who  regard  that  which  is  in  harmony  with  a  reasonable 
nature  as  belonging  to  natural  law,  and  that  which  is  based  upon  our 
needs,  which  can  not  be  better  provided  for  than  by  the  laws  of  socia- 
bility, as  belonging  to  the  law  of  nations.  For  we  maintain  sinii)ly  that 
there  is  no  positive  law  of  nations  that  is  dependent  upon  the  will  of 
a  superior.  And  that  which  is  a  consequence  of  the  needs  of  human 
nature  should,  in  my  oijinion,  be  referred  to  the  natural  law.  If  we 
have  not  thought  proper  to  base  this  law  upon  the  agreement  of  the 
things  which  are  its  object,  with  a  reasonable  nature,  this  was  in  order 
not  to  establish  in  reason  itself  the  rule  of  the  maxims  of  reason,  and  to 
avoid  the  circle  to  which  is  reduced  the  demonstration  of  the  njitural 
laws  by  this  method. 

Moreover,  the  majority  of  the  things  which  the  Koman  jurisconsults 
ivnd  the  great  body  of  learned  men  refer  to  the  law  of  uatiousj  auaU 


20 


ARGUMENT   OF    THE    UNITED    STATES. 


as  the  diifereiit  kinds  of  acquisition,  contracts,  and  other  similar  things, 
either  belong  to  the  natural  law  or  form  part  of  the  civil  law  of  every 
nation.  And,  although  in  regard  to  those  things  whi(;h  are  not  based 
upon  the  universal  constitution  of  the  human  race,  the  laws  are  the  same 
among  the  majority  of  the  nations,  no  particular  kind  of  law  results  from 
this,  for  it  is  not  in  virtue  of  any  agreement  or  of  any  mutual  obliga- 
tion that  these  laws  are  com  mem  to  several  peoples,  but  purely  and 
simply  from  an  eft'ect  of  the  particular  will  of  the  legislators  of  each 
State,  who  have  by  chance  agreed  in  ordering  or  forbidding  the  same 
things.  Hence  it  is  that  a  single  people  can  change  these  laws  of  its 
own  accord  withoiit  consulting  others,  as  has  frequently  been  done. 

We  must  not,  however,  absolutely  reject  the  opinion  of  a  modern 
writer,  who  claims  that  the  Roman  jurisconsults  understand  by  law  of 
nations  that  law  which  concerns  those  acts  which  foreigners  could  per- 
form, and  the  business  which  they  could  validly  transact  in  the  states 
belongingto  the  lioman  people,  in  contrast  with  the  civil  law  that  was 
particular  to  Eoman  citizens.  Hence  it  was  that  wills  and  marriages, 
which  were  valid  among  citizens  only  were  referred  to  civil  law,  while 
contracts  were  considered  as  coming  under  the  law  of  nations,  because 
foreigners  could  make  them  with  citizens  in  such  a  manner  that  they 
were  valid  betine  the  Roman  courts  of  justice.  Many  also  apply  the 
name  law  of  nations  to  certain  customs,  especially  in  matters  relating 
to  war,  which  are  usually  practiced  by  a  kind  of  tacit  consent,  among 
the  majority  of  nations,  at  least  among  those  that  pride  themselves  on 
having  some  courtesy  and  humanity. 

In  fact,  inasmuch  as  civilized  nations  have  attached  the  highest  glory 
to  distinction  in  war;  that  is  to  say,  to  daring  and  knowing  how  skill- 
fully to  caus(i  the  death  of  a  large  number  of  persons,  which  has  in  all 
ages  given  rise  to  many  unnecessary  or  even  unjust  wars,  conquei'ors, 
in  order  not  to  render  themselves  wholly  odious  by  their  ambition, 
have  thouglit  proper,  Avhile  claiming  every  right  that  one  has  in  a  just 
war— have  thought  proper,  I  say,  to  mitigate  the  horrors  of  war  and  of 
military  expeditions  by  some  appearance  of  humanity  and  magna- 
nimity. Hence  the  usage  of  sparing  certain  kinds  of  things  and  cer- 
tain classes  of  persons,  of  observing  some  moderation  in  acts  of  hos- 
tility, of  treating  prisoners  in  a  certain  way,  and  other  similar  things. 
Yet  while  such  customs  seem  to  involve  some  obligation,  based  at 
least  upon  a  tacit  agreement,  if  a  prince  in  a  just  war  fails  to  observe 
them,  provided  tliat  by  taking  an  opposite  course  he  does  not  violate 
natural  law,  he  can  be  accused  of  nothing  niiu-e  than  a  kind  of  dis- 
(!ourtesy,  in  that  he  has  not  observed  the  received  usaue  of  those 
who  regard  war  as  being  one  of  the  liberal  arts;  just  as  among  fencing 
umsters,  one  who  has  not  wounded  his  man  according  to  the  rules  of 
art  is  regarded  as  an  ignorant  person. 

Thus,  so  long  as  none  but  just  wars  are  carried  on,  the  maxims  of 
natural  lawalone  may  be  consulted,  and  all  the  customs  of  other  nations 
maybe  set  at  naught  unless  one  is  interested  in  conforming  thereto,  so 
as  to  induce  the  enemy  to  perform  less  rigorous  acts  of  hostility  against 
us  and  against  our  party.  Those,  however,  who  undertake  an  unjust 
war,  do  well  to  follow  these  customs,  so  as  to  maintain  at  least  some 
moderation  in  their  injustice.  As,  however,  these  are  not  reasons  that 
are  generally  to  be  considered,  they  can  constitute  no  universal  law, 
obligatory  upon  all  naticms;  especially  since  in  all  things  that  are  only 
based  ui)on  tacit  consent  anyone  may  decline  to  be  bound  by  them  by 
exi)ressly  declaring  that  he  will  not  be  so  bound,  and  that  he  is  willing 
that  others  should  not  be  thereby  bound  in  their  dealiugs  with  him. 


APPENDIX   TO   PART   FIRST. 


21 


We  observe  tliat  not  a  few  of  these  cUvS  torn  shave,  in  course  of  time  been 
abolished,  .ind  that  in  some  cases  directly  opposite  customs  have  been 
introduced. 

In  vain  has  a  certain  writer  impugned  our  opinion  as  if  it  were  sub- 
versive of  the  foundations  of  tlie  safety,  advantage,  and  welfare  ot  na- 
tions ;  for  all  that  is  not  dependent  upon  the  customs  just  referred  to, 
but  upon  the  observance  of  the  natural  ]av%  which  is  a  much  more  solid 
principle  and  one  deserving  of  much  greater  respect.  If  its  rules  are 
carefully  observed,  mankind  will  not  have  much  need  of  these  customs. 
Moreover,  by  basing  a  custom  upon  the  maxims  of  natural  law,  a  nuich 
more  noble  origin  is  given  it,  and  also  much  greater  authority  than  if 
it  were  made  to  depend  upon  a  mere  agreement  among  nations. 

[Ortolan.    International  Rules  and  Diplomacy  of  the  Sea.    Paris,  18G4,  vol.  i,  book 

1,  ch.  IV.,  pa<;;e  71.    Translation.] 

It  is  apparent  that  nations  not  having  any  common  legislator  over 
them  have  frequently  no  other  recourse  for  determining  their  respective 
rights  but  to  that  reasonable  sentiirient  of  light  and  wrong,  but  to 
those  moral  truths  already  brought  to  light  and  to  those  which  are  still 
to  be  demonstrated.  This  is  what  is  meant  when  it  is  said  that  natural 
law  is  the  first  basis  of  international  law.  ThivS  is  why  it  is  important 
that  Governments,  diplomats,  and  publicists  that  act,  negotiate,  or 
write  upon  such,  matters  should  have  deeply  (rooted)  in  themselves  this 
sentiment  of  light  and  of  wrong  which  we  have  just  defined,  as  well  as 
the  knowled  ?e  of  the  point  of  certainty  (point  de  certitude)  where  the 
human  mind  has  been  able  to  attain  this  order  of  truths. 

But  nations  are  not  reduced  only  to  that  light,  too  often  uncertain 
of  human  reason,  for  defining  ther  reciprocal  rights.  Experience, 
imitation  of  accomplished  precedents,  and  long  practical  usage  habit- 
ually and  generally  observed  add  to  it  what  is  termed  a  custom  which 
forms  the  rule  of  international  conduct  and  from  which  flows  on  one  or 
the  other  side  positive  rights  (adroits).  The  binding  force  of  custom 
is  founded  on  consent,  the  tacit  agreement,  of  nations.  Is'ations  have 
thus  tacitly  agreed  among  themselves,  and  they  have  bound  tliem- 
selves  through  this  tacit  agreement,  for  the  reason  that  they  have 
practiced  it  so  long  and  so  generally. 

The  supremacy  of  custom  is  much  more  frequently  exercised  and 
much  more  extensive  in  international  law  than  in  private  law;  pre- 
cisely because  in  international  law  there  is  no  common  legislator  to 
restrain  such  supremacy  by  formulating  the  rule  of  conduct  in  writ- 
ing. Custom  is  often  comformable  to  the  light  of  reason  upon  that 
which  is  right  or  wrong  because  it  emanates  from  communities  or  col- 
lections of  reasonable  beings ;  but  frequently  also  it  is  contrary  to  it, 
because  the  reason  of  man,  individual  or  collective,  is  subject  to  error; 
finally,  it  tends  more  and  more  intimately  to  approach  it,  because  the 
path  of  man,  an  essentially  perfectible  being,  is  a  path  of  improvement 
and  progress.  , 

•  •••••* 

It  must  be  stated  that  treaties,  far  from  justifying  the  exclusion  of 
moral  truths  of  what  is  right  or  wrong,  among  luitions,  which  one 
wishes  to  deduce  from  them,  precisely  only  obtain  their  binding  force 
but  from  one  or  the  other  of  those  truths.  It  is  because  the  natural 
uentinient  of  right  dictates  to  all  that  a  regular  agreement  of  inde- 
pendent wills  between  qualified  persons  on  allowable  subjects  and  cases 
binds  the  contracting  parties  to  each  other,  it  is  therefore  that  treaties 


22 


ARGUMENT  OP  THE  UNITED  STATES. 


are  recogiiizod  aa  obligatory.  They  only  draw,  therefore,  their  funda- 
mental authority  except  from  natural  law,  employing  for  an  instant 
this  term,  the  sense  of  which  we  have  before  explained.  And  it  is  also 
from  natural  law  that  is  generally  deduced  the  i<lca  of  the  necessary 
conditions  to  establish  the  validity  of  treaties,  and  that  of  the  legitimate 
consequences  ensuing  from  their  violation. 

[From  "  A  Methodical  System  of  Universal  Law,"  by  J.  G.  Heiuoccius  (TumbuU's 

Trauslatiou),  vol.  i.,  ed.  1763.] 

Sec.  XII,  page  S:  The  law  of  nature,  or  the  natural  rule  of  recti- 
tude, is  a  system  of  law  promulgated  by  the  eternal  God  to  the  whole 
human  race  by  reason.  But  if  you  would  rather  consider  it  as  a 
science,  natural  morality  will  be  rightly  defined  the  practical  habit  of 
discovering  the  will  of  the  supreme  legislator  by  reason,  and  of  api)ly- 
ing  it  as  a  rule  to  every  particular  case  that  occurs.  Now,  because  it 
consists  in  deducing  and  pnplying  a  rule  coming  from  God,  it  may  be 
justly  called  divine  jurisprudence. 

Sec.  XXI,  page  14:  *Since  the  law  of  nature  comprehends  all  the 
laws  promulgated  to  mankind  by  right  reason ;  and  men  may  be  con- 
sidered either  as  particulars  singly,  or  as  they  are  united  in  certain 
political  bodies  or  societies;  we  call  that  law,  by  which  the  acitions  of 
particulars  ought  to  be  governed,  the  law  of  nature,  and  we  call  that 
the  law  of  nations,  which  determines  what  is  just  and  unjust  in  society 
or  between  societies.  And  therefore  the  precepts,  or  the  laws  of  both 
are  the  same;  nay,  the  latv  of  nations  is  the  law  of  nature  itself,  re- 
specting or  applied  to  social  life  and  the  affairs  of  societies  and  inde- 
pendent states. 

Sec.  XXII,  page  15 :  Hence  we  may  infer,  that  the  law  of  nature  doth 
not  differ  from  the  law  of  nations,  neither  in  respect  of  its  foundation 
and  first  principles,  nor  of  its  rules,  but  solely  with  respect  to  its  object. 
Wherefore  their  opinion  is  groundless,  who  speak  of,  I  know  not  what, 
law  of  nations  distinct  from  the  law  of  nature.  The  positive  or  second 
ary  law  of  nations  devised  by  certain  ancients,  does  not  properly  belong- 
to  that  law  of  nations  we  are  now  to  treat  of,  because  it  is  neither  es- 


tablished by  God,  nor  promulgated    by 
common  to  all  mankind  nor  unchangeable. 


right 


reason:  it  is  neither 


[From  Vattel  ou  tlio  Law  of  Nations,  sevontli  American  ed.,  1849.] 

There  certairily  exists  a  natural  law  of  nations  since  the  obligations 
of  the  law  of  nature  are  no  less  binding  on  states,  on  men  united  in 
political  society,  than  on  individuals.  But,  to  acquire  an  exact  knowl- 
edge of  that  law,  it  is  not  sufficient  to  know  what  the  law  of  nature 
prescribes  to  the  individuals  ot  the  human  race.  The  application  of  a 
rule  to  various  subjects,  can  no  otherwise  be  made  than  in  a  manner 
agreeable  to  the  nature  of  each  subject.  Hence,  it  follows,  that  the 
natural  law  of  nations  is  a  particular  science,  consisting  in  a  just  and 
rational  application  of  the  law  of  nature  to  the  affairs  and  conduct  of 
nations  or  sovereigns.    (Preface,  page  v.) 

The  moderns  are  generally  agreed  in  restricting  the  appelation  of 
"The  Law  of  Nations"  to  that  system  of  right  and  justice  which  ought 
to  prevail  between  nations  or  sovereign  states.    (Preface,  page  vi.) 

The  necessary  and  the  voluntary  law  of  nations  are  therefore  both 
established  by  nature,  but  each  in  a  different  manner;  the  former  as  a 
sacred  law  which  ■  ations  and  sovereigns  are  bound  to  respect  and  fol- 
low in  all  their  actions  j  the  latter,  as  a  rule  which  the  general  welfare 


r  "' 


nda- 
itaiit 
)  also 

late 


buU'i 


f 


APPENDIX    TO   PART    FIRSt. 


23 


and  safety  oblige  tliem  to  admit  in  their  transactions  witli  eacli  other. 
The  necessary  law  immediately  proceeds  from  natnre;  and  that  com- 
mon mother  of  mankind  recommends  the  observance  t)f  the  vohintary 
law  of  nations,  in  consideration  of  the  state  in  which  nations  stand  with 
respect  to  each  other,  and  for  the  advantage  of  their  affairs.  (Preface, 
pafe?  XIII.) 

As  men  are  subject  to  the  law  of  nature — and  as  their  union  in  civil 
society  can  not  have  exempted  them  from  the  obligation  to  observe 
those  laws,  since  by  that  union  they  do  not  cease  to  be  men,  the  entire 
nation,  whose  common  will  is  but  the  result  of  the  united  wills  of  the 
citizens,  remains  subject  to  the  laivs  of  nature,  and  is  bound  to  respect 
tliem  in  all  her  proceedings.    (Page  Lvi.,  sec.  5.) 

"  We  must,  therefore,  apply  to  nations  the  rules  of  the  law  of  nature, 
in  order  to  discover  what  tlieir  obligations  are,  and  what  their  rights: 
consequently,  the  law  of  nations  is  originally  no  other  than  the  law  of 
nature  applied  to  nations."    (Page  LVi,  sec.  G.) 

[From  Q.  F.  von  Martens,  Law  of  Nations,  page  2  of   Introduction.     (Gorman.) 
Translated  by  William  Cobbet,  4th  ed.,  1829.] 

The  second  sort  of  obligations  are  those  which  exist  between  nations. 
Each  nation  being  co'nsidered  as  a  moral  being,  living  in  a  state  of 
nature,  the  obligations  of  one  nation  towards  another  are  no  more  than 
those  of  individuals,  moditied  and  applied  to  nations;  and  this  is  what 
is  called  the  natural  law  of  nations.  It  is  vniversal  and  necessary, 
because  all  nations  are  governed  by  it,  even  against  their  will.  This 
law,  according  to  the  distinction  between  jjcrfect  and  imperfect,  is  per- 
fect and  external  (the  law  of  nations,  strictly  si)eaking),  or  else  imper- 
fect and  internal,  by  which  last  is  understood  the  morality  of  nations. 

[Sec.  2  of  the  Positive  Law  of  Nations.] 

It  is  hardly  possible  that  the  simple  law  of  nature  should  be  sufficient 
even  between  individuals,  and  still  less  between  nations,  when  they 
come  to  frequent  and  carry  on  commerce  with  each  other.  Their  com- 
mon interest  obliges  them  to  soften  the  rigor  of  the  law  of  nature,  to 
render  it  more  determinate,  and  to  depart  from  that  perfect  equality  of 
rights,  which  must  ever,  according  to  the  law  of  nature,  bo  considered 
as  extending  itself  even  to  the  weakest.  These  changes  take  place  iu 
virtue  of  conventions  (express  or  tacit)  or  of  simple  custom.  The  whole 
of  the  rights  and  obligations,  thus  established  between  two  nations, 
form  the  ])ositive  law  of  nations  between  them.  It  is  called  positive, 
particular,  or  arbitrary,  in  opposition  to  the  natural,  universal,  and 
necessary  law. 

[From  Jan  Helenus  Ferguson,  Dutch,  but  apparently  written  in 
English,  "Manual  of  International  Law"  (1884),  Vol.  i.  Part  i,  Ch.  iii, 
sec.  21,  page  06.] 

International  law,  being  based  on  international  morality,  depends 
upon  the  state  of  progress  made  in  civilization.  Hence  ari.ses  the  diffi- 
culty of  giving  an  all-corn jirehending  definition  to  international  law. 
"What  ought  to  be  permanently  understood  among  civilized  nations  as 
the  mr'  i  prirudples  and  the  basis  of  tlieir  mutual  intercourse,  we  have 
noted  already  to  be  the  moral  law  of  nature.  But  we  have  also  seen 
that  the  spirit  of  law  is  the  practical  medium  through  which  this  general 
law  influences  humanity  at  all  the  stages  of  progress  on  the  road  to 
civilizatiou. 


^4 


ARGUMENT  OF  THE  UNITED  STATES. 


I 
I 


I 


Investigating  thus  this  spirit  of  law,  we  And  the  definition  of  inter- 
national law  to  consist  in  cerUiin  rules  of  conduct  which  reason, prompted 
by  conscienre,  deduces  as  consonant  to  justice,  with  such  limitations  and 
modifications  as  may  be  established  by  general  consent,  to  meet  the  exigen- 
cies of  the  present  state  of  society  as  existing  among  nations  and  which 
modern  civilized  states  regard  as  binding  them  in  their  relations  with  one 
another,  with  a  force  comparable  in  nature  and  degree  to  that  binding  the 
conscientious  person  to  obey  the  laws  of  his  country. 

[From  "  Le  Droit  Public  International  Maritime,"  par  Carlos  Testa  (Portngnese), 
translated  by  H.  Houtiron,  1886,  part  i,  chap.  1,  pages  46  et  set?.] 

Force  may  constitute,  in  physical  matters,  the  superiority  of  one  in- 
dividual over  another ;  but  reason  and  conscience  establish,  in  moral 
matters,  other  means  which  are  controlled  by  the  notion  of  duty  and 
right.  It  is  the  whole  body  of  these  precepts,  which  are  just,  neces- 
sary, and  immutable,  for  every  reasoning  being,  and  graven  by  God  in 
the  human  conscience,  that  constitutes  the  natural  or  prinsitive  law. 
The  c'  ject  of  a  law  regulating  the  conduct  of  men  is  to  impose  moral 
obligatiions  or  to  authorize  certain  acts  from  which  advantages  may 
result. 

In  the  former  case  the  law  establishes  the  duty;  in  the  latter  it  con- 
siders the  right.  The  natural  or  primitive  law,  when  it  designates  the 
duties  that  it  imposes,  at  once  establishes  tlie  correlative  duties  which 
are  its  outgrowth,  and  which  constitute  the  principles  of  natural  or 
primitive  law. 

The  science  of  natural  law  is  therefore  based  upon  the  principles  of 
that  intuitive  law  which,  while  giving  the  ability  to  practice  that  which 
is  morally  just,  establishes  the  principles  to  be  observed  in  the  relations 
between  one  individual  and  another  for  tlie  different  hypotheses  of 
social  life. 

Duty  is  a  matter  of  precept,  while  right  is  optional;  y«t  right  and 
duty  are  essentially  correlative;  and  in  the  reciprocal  relations  between 
one  individual  and  another,  that  which  constitutes  a  duty  for  one, 
establishes  a  right  for  another.  The  same  is  the  case  in  the  mutual 
relations  of  collective  bodies. 

It  is  an  axiom  which  results  from  the  study  of  the  moral  nature  of 

man  that  alone  and  isolated  he  cannot  attain  his  welfare,  and  that 

•sociability  is  a  condition  which  is  by  nature  necessary  to  enable  him  to 

attain  his  highest  advantage.    This  natural  cause  has  produced  the 

family,  a  social  element  which  determines  the  formation  of  nations. 

Now,  natui-al  law,  which  is  essentially  connected  Avith  humfxn  nature, 
and  which  prescribes  certain  principles  that  are  to  control  the  recip- 
rocal relations  between  one  individual  and  another,  is  likewise  and  for 
the  same  reason  applicable  to  the  relations  existing  among  collective 
bodies  of  individuals,  which  constitute  so  many  moral  entities.  It  is, 
therefore,  the  common  law  of  association — that  is  to  say,  of  nationali- 
ties. 

This  application  of  the  precepts  of  natural  law,  which  obliges  nations 
to  practice  the  same  duties  that  it  prescribes  for  individuals,  consti- 
tutes the  law  of  nations,  which,  when  considered  according  to  its  origin 
(which  is  based  upon  natural  law),  is  also  called  the  primitive  or  neces- 
sary law  of  nations. 

Respect  for  the  law  of  nations  is  consequently  as  obligatory  among 
nations  as  is  respect  for  natural  law  among  individuals. 

From  the  fact  that  the  various  civil  societies  which  form  nations  or 
states,  are  independent,  it  results  thsit  the  internal  laws  which  consti- 
tute the  public  law  of  some  can  not  be  extended  to  the  others — that  is  to 


APPENDIX   TO   PART    FIRST. 


26 


Say,  the  internal  public  law  of  each  nation  or  ^itate  can  not  be  regarded 
as  au  external  and  absolute  law,  to  which  others  must  submit. 

Hence  it  results  that,  in  order  to  fix  the  limits  at  which  the  law  of 
nations  stops,  it  is  absolutely  necessary  to  have  recourse  to  the  various 
elements  that  can  give  it  birth.    These  elements  are: 

1.  The  general  principles  of  natural  law,  constituting  the  primitive 
law  which  is  the  outgrowth  of  the  presumable  consent  of  nations; 

2.  The  law  of  custom,  constituting  the  secondary  law  that  emanates 
from  tacit  consent; 

3.  Conventional  law,  likewise  constituting  the  secondary  law  which 
arises  from  expressed  consent. 

The  origins  of  international  law  are  therefore  throe  in  number : 

1.  The  reason  and  the  consience  of  what  is  just  and  unjust,  inde- 
pendent of  any  prescription; 

2.  Custom; 

3.  Public  treaties. 

The  principles,  practices,  and  usages  of  the  law  of  nations,  in  accord 
ance  with  these  limits,  regulate  the  conduct  of  nations,  and  it  is  for  this 
reason  that  in  their  generality  they  constitute  international  law. 

Conventional  law  may  abrogate  the  law  of  custom,  biit  it  loses  its 
character  as  a  law  if  it  establishes  provisions  at  variance  with  natural 
law. 

Although  in  the  philosophical  order  natural  law  occupies  the  iirst 
place,  yet  in  the  practical  order  of  external  relations,  when  questions 
are  to  be  decided  or  negotiations  conducted,  its  rank  is  no  longer  the 
same;  in  these  cases  the  obligations  contracted  in  the  name  of  conven- 
tional law,  in  virtue  of  existing  treaties,  are  considered  in  the  first 
place.  If  such  treaties  are  lacking,  the  law  of  custom  establishes  the 
rule;  and  when  there  are  neither  treaties  to  invoke  nor  customs  to  fol- 
low, it  is  usual  to  proceed  in  aecordance  with  what  reason  establishes 
as  just,  and  with  the  simple  principle  of  natural  law. 

When  external  public  law  derives  its  origin  from  the  law  of  conven- 
tion and  custom,  it  constitotes  what  publicists  designate  as  positive  or 
secondary  international  law;  when  it  is  derived  merely  from  the  prin- 
ciples of  natural  law,  it  is  called  the  primitive  law  of  nations. 

[From  Burlamaqni  "The  Principles  of  Natural  and  Politic  Law."    Translated  by 
Nugent,  1823,  Part  ii,  eh.  vi,  pages  135,  136.] 

IV.  All  societies  are  formed  by  the  concurrence  or  union  of  the  wills 
of  several  persons  with  a  view  of  acquiring  some  advantage.  Hence 
it  is  that  societies  are  considered  as  bodies,  and  receive  the  appellation 
of  moral  persons.     *    *     * 

V.  This  being  supposed,  the  establishment  of  states  introduces  a 
kind  of  society  amongst  them,  similar  to  that  which  is  naturally 
between  men;  and  the  same  reasons  which  induce  men  to  maintain 
union  among  themselves,  ought  likewise  to  engage  nations  or  their 
sovereigns  to  keep  up  a  good  understanding  with  one  another. 

It  is  necessary,  therefore,  there  should  be  some  law  among  nations  to 
serve  as  a  rule  for  mutual  commerce.  Now  this  law  can  be  nothing 
else  but  the  law  of  nature  itself,  which  is  then  distinguished  by  the 
name  of  the  law  of  nations.  Natural  law,  says  Hobbes,  very  justly 
(De  Cive,  cap.  14,  sec.  4),  i«  divided  into  the  natural  law  of  man  and  the 
natural  law  of  staten;  and  the  latter  is  what  we  call  law  of  nations. 
Thus  natural  law  and  the  law  of  nations  are  in  reality  one  and  the 
same  thing,  and  differ  only  by  an  external  denomination.  We  must 
therefore  say  that  the  law  of  nations,  properly  so  called,  and  considered 
as  a  law  proceeding  from  a  superior,  is  nothing  else  but  the  law  of  na* 


152886 


26 


ARGUMENT   OF   THE   tJNiTED   STATES. 


ture  itself,  not  applied  to  men,  considered  simply  as  sudi,  l>nt  to  nations, 
States,  or  their  chiefs,  in  the  relations  they  have  together,  and  the 
several  interests  they  Itave  to  manage  between  each  other. 

VI.  There  is  no  room  to  question  the  reality  and  certainty  of  such  a 
law  of  nations  obligatory  of  its  own  nature,  and  to  which  nations,  or  the 
so /ereigns  tliat  rule  them,  ought  to  submit.  For  if  God  by  means  of 
right  reason  imposes  certain  duties  between  individuals,  it  is  evident  he 
is  likewise  willing  that  nations,  which  are  only  human  socigties,  should 
observe  the  same  duties  between  themselves.    (See  ch.  v,  sec.  8.) 

Sec.  IX.  *  •  *  There  is  certainly  an  universal,  necessary,  and 
self-obligatory  law  of  nations,  which  diflfers  in  nothing  from  the  law  of 
nature,  and  is  consequently  immutable,  insomuch  that  the  people  or 
sovereigns  can  not  dispense  with  it,  even  by  common  consent,  without 
transgressing  their  duty.  There  is,  besides,  another  law  of  nations 
which  we  may  call  arbitrary  and  free,  as  founded  only  on  au  express  or 
tacit  convention,  the  eflfect  of  which  is  not  of  itself  universal,  being 
obligatory  only  in  regard  to  those  who  have  voluntarily  submitted 
thereto,  and  only  so  long  as  they  please,  because  they  are  always  at 
liberty  to  change  or  repeal  it.  To  this  we  must  likewise  add  that  the 
whole  force  of  this  sort  of  law  of  nations  ultimately  depends  on  the 
law  of  nature,  which  commands  us  to  be  true  to  our  engagements. 
Whatever  really  belongs  to  the  law  of  nations  may  be  reduced  to  one 
or  other  of  these  two  species;  and  the  use  of  this  distinction  will  easily 
appear  by  applying  it  to  particular  questions  which  relate  either  to 
war,  for  example,  to  ambassadors,  or  to  public  treaties,  and  to  the  de- 
ciding of  disputes  which  sometimes  arise  concerning  these  matters 
between  sovereigns. 

Seo.  X.  It  is  a  point  of  importance  to  attend  to  the  origin  and  nature 
of  the  law  of  nations,  such  as  we  have  now  explained  them.  For,  be- 
sides that  it  is  always  advantageous  to  form  just  ideas  of  things,  this 
is  still  more  necessary  in  matter  of  practice  and  morality.  It  is  owing 
perhaps  to  our  distinguishing  the  law  of  nations  from  natural  law,  that 
we  have  insensibly  accustomed  oursel  ves  to  form  quite  a  ditterent  judg- 
ment betv.  ^en  the  actions  of  sovereigns  and  those  of  private  people. 
Nothing  is  more  usual  than  to  see  men  condemned  in  common  for  things 
which  we  praise,  or  at  least  excuse  in  the  persons  of  princes.  And  yet 
it  is  certain  as  we  have  already  shown,  that  the  maxims  of  the  law  of 
nations  have  an  equal  authority  with  those  of  the  law  of  nature,  and  are 
equally  respectable  and  sacred,  because  they  have  God  alike  for  their 
author.  In  short,  there  is  only  one  sole  and  the  same  ride  of  justice 
for  all  mankind.  Princes  who  infringe  the  law  of  nations  commit  as 
great  a  crime  as  private  people  who  violate  the  law  of  nature;  and  if 
there  be  any  difference  in  the  two  cases,  it  must  be  charged  to  the 
prince's  account,  whose  unjust  actions  are  always  attended  with  more 
dreadful  consequences  than  those  of  private  people. 

Other  citations  might  be  added  almost  indefinitely.  The  following 
references  may  be  added: 

F.  de  Martens,  Int.  Law,  Paris,  1883,  Vol.  1,  pages  19,  20;  Li.  E.  P. 
Tuparelli  d'Azeglio,  de  la  Compagnie  de  J6sus,  Traduit  de  I'ltalien, 
deux  ed.  tome  ii,  ch.  2;  Grotius  De  Jure,  Belli  ac  Pacis.  Proleg;  Heff- 
ter,  Int.  Law  of  Europe,  page  2;  Bluntschli,  Le  Droit  Int.  Codifid, 
pages  1,  2;  Pasquale  Fiore,  book  1,  ch.  1;  Ahrens,  Course  of  Natural 
Law  and  The  Philosophy  ot  Law,  Vol.  ii,  book  iii,  ch.  1;  M.  G.  Masse, 
Commercial  Law  in  its  Eelations  to  the  Law  of  Nations,  etc.,  Paris, 
1874,  book  1,  Lib.  ii,  ch.  1,  page  33;  Louis  Keuault,  Introduction  a 
r^tude  da  Droit  International,  Paris,  1879,  pages  13, 11. 


JUJJISBICTIONAL   AND    OTHER    KlGHTa    OVEU   BEEIXQ    SEA.     27 


the 
sof 
tlie 
uld 


SECOND. 

THE  ACQUISITION  BY  RUSSIA  OF  JURISDICTIONAL  OR  OTHER 
RIGHTS  OVER  BERING  SEA  AND  THE  TRANSFER  THEREOF  TO 
THE  UNITED  STATES. 

The  first  four  questions  submitted  to  the  High  Tribunal  by  the  Treaty 
are  these: 

1.  What  exclusive  jurisdiction  in  the  sea  now  known  as  the  Behrinff's 
Sea,  and  what  exclusive  rights  in  the  seal  fisheries  tlieroin,  did  Russia 
assert  and  exercise  prior  and  up  to  the  time  of  the  cession  of  Alaska  to 
the  United  States? 

2.  How  far  were  these  claims  of  jurisdiction  as  to  the  seal  fisheries 
recognized  and  conceded  by  Great  Britain  ? 

3.  Was  the  body  of  water  now  known  as  the  Behriug  Sea  included 
in  the  phrase  '  Pacific  Ocean,'  as  used  in  the  treaty  of  1825  between 
Great  Britain  and  Eussia;  and  what  rights,  if  any,  in  the  Behring 
Sea  were  held  and  exclusively  exercised  by  Russia  after  said  treaty? 

4.  Did  not  all  the  rights  of  Russia  as  to  jurisdiction,  and  as  to  tlie 
seal  fisheries  in  Bering  Sea  east  of  the  water  boundary  in  the  treaty 
between  the  United  States  and  Russia  of  the  30tli  of  March,  1867,  pass 
unimpaired  to  the  United  States  under  that  treaty  ? 

The  learned  Arbitrators  may  have  themselves  had  occasion  to  ob- 
serve, and,  if  not,  it  will  at  an  early  stage  in  the  discussion  of  this  con- 
troversy become  manifest  to  them,  that  in  the  consideration  by  writers 
upon  international  law  and  by  learned  judges  administering  that  law, 
of  the  authority  which  nations  may  exercise  upon  the  high  seas,  two 
subjects,  essentially  distinct,  have  been  habitually  confounded,  and 
have  not,  even  at  this  day,  been  clearly  separated  and  defined.  One 
is  the  exercise  of  the  sovereign  right  of  making  laws  operative  upon 
the  high  seas  and  binding  as  well  upon  foreigners  as  citizens,  which 
right  must  necessarily  be  limited  by  some  definite  boundary  line.  The 
other  is  the  protection  afforded  by  a  nation  to  its  property  and  other 
rights  by  reasonable  and  necessary  acts  of  power  against  the  citizens 
of  other  nations  whenever  it  may  be  necessary  on  the  high  seas  with- 
out regard  to  any  boundary  line.  Much  of  this  confusion  has  arisen 
and  been  fostered  by  the  lack  of  precision  in  the  meaning  of  words. 
The  term  "jurisdiction"  has  from  the  first  been  indifferently  employed 
to  denote  both  thiigs.  It  has  thus  become  a  word  of  ambiguous 
import. 


28 


ARGUMENT  OF  THE  UNITED  STATES. 


These  two  subjects  may  appour  to  have  been  to  some  extent  con- 
ibnniled,  or  blended,  in  the  minds  of  the  negotiators  of  the  treaty,  for 
the  four  questions  now  about  to  be  considered  appear,  at  first  view,  to 
embrace  both.  The  Tribunal  is  called  upon  to  determine,  on  the  one 
hand,  what  ejcclusive  jurisdictioii  in  Bering  Sea  Bussia  has  asserted 
and  exercised,  which  may  not  unreasonably  be  viewed  as  referring 
to  the  exercise  of  the  sovereign  power  of  legislation  over  that  sea, 
tai.iamount  to  an  extension  of  territorial  sovereignty. 

It  is  also  called  upon  to  determine  what  exclusive  right  in  the  "  seal 
fisheries "  in  Bering  Sea  Eussia  asserted  and  exercised  prior  to  the 
cession  to  the  United  States — a  totally  diflferent  question — although  a 
decision  of  it,  aflftrming  the  exclusive  right,  might  carry  with  it,  as  a 
consequence,  the  right  to  protect  such  fisheries  by  a  reasonable 
exercise  of  national  power  anywhere  upon  the  seas  where  such  exer- 
cise might  be  necessary. 

And  yet  it  is  not  probable  that  the  negotiators,  even  if  the  two  ques- 
tions were  to  them  distinctly  in  view,  really  intended  to  assign  a  dis- 
tinct and  separate  importance  to  the  first.  The  real  controversy  was 
upon  the  second,  and  t\i.Q  first  was  intended  to  be  included,  only  so  far 
as  it  might  have  a  bearing  upon  the  second.  This  is  quite  manifest 
from  the  circumstance  tliat  in  neither  of  the  four  questions  is  the  first 
of  the  two  rights  or  claims  stated  alone  and  apart  from  the  other;  and 
still  more  from  the  language  of  the  second  question,  which  clearly  im- 
plies that  the  claim  of  a  right  to  exercise  authority  on  the  sea  in  defense 
of  a  property  interest  is  the  one  principally  intended  to  be  submitted. 
The  language  is  as  follows :  "  How  far  were  these  claims  of  jurisdiction 
a«  to  the  seal  fisheries  recognized  and  conceded  by  Great  Britain.''  This 
language  clearly  shows  that  the  Eussian  claims  of  exclusive  jurisdic- 
tion designed  to  be  submitted  to  the  Tribunal  were  such  only  as  as- 
serted a  right  to  protect  the  sealing  interest  of  Eussia  by  action  upon 
Bering  Sea.  And  there  is  nothing  in  the  dijilomatic  correspondence 
■which  led  up  to  the  treaty  disclosing  any  assertion  on  the  part  of  the 
United  States  to  the  effect  that  Eussia  had  ever  gained  any  right  of 
exclusive  legislation  over  that  sea.  On  the  contrary,  such  assertion  had 
been  emphatically  disclaimed. 

It  is  by  no  means  intended  in  what  has  been  said  that  the  question 
what  authority  on  Bering  Sea,  or,  to  use  the  ambiguous  word,  what 
*' jurisdiction"  in  Bering  Sea,  Eussia  had  asserted  and  exercised  in 
relation  to  her  sealing  interests,  is  unimportant.  That  question,  although 


JURISDICTIONAL  AND  OTHKlt  UIGHT8  OVER  BERING  REA. 


29 


in  no  sense  a  vital  one,  has  a  material  bearing,  and  was  designed  to  bo 
embraced  by  the  arbitration.  The  question  whether  property  rights 
and  interests  exist,  is  one  thing;  the  question  what  the  nation  to  which 
they  belong  nniy,  short  of  an  exercise  of  the  sovereign  power  of  exclu- 
sive legislation,  do  by  way  of  protecting  them,  is  another;  and  both  are 
by  the  treaty  submitted  to  the  Tribunal.  Should  it  appear  that  Kussia 
had  for  nearly  a  century  actually  asserted  and  exercised  an  authority 
in  Bering  Sea  for  the  purpose  of  protecting  her  sealing  interests,  and 
that  Great  Britain  had  never  resisted  or  disputed  it,  it  would  be  quite 
too  late  for  her  now  to  draw  the  reasonableness  of  it  into  question. 

A  studied  effort  is  made  in  the  Case  of  Great  Britain  to  make  it 
appear  that  the  United  States  have  shifted  their  ground  from  time  to 
time  in  relation  to  the  subject  of  this  controversy,  by  first  asserting 
that  Bering  Sea  was  mare  clausum;  then  by  setting  up  an  exclusive 
jurisdiction  over  an  area  with  a  radius  of  100  miles  around  the  Pribilof 
Islands;  and,  lastly,  by  abandoning  both  those  positions,  and  asserting 
a  property  interest  in  the  herds  of  seals.  This  appears  from  the 
deliberate  statement  which,  closes  the  Seventh  Chapter  of  the  Case  of 
Great  Britain,  as  follows: 

The  facts  stated  in  this  chapter  show: 

That  the  original  ground  upon  which  the  vessels  seized  in  188G  and 
1887  were  condemned,  was  that  Bering  Sea  was  a  mare  clausum,  an 
inland  sea,  and  as  such  had  been  conveyed,  in  part,  by  Russia  to  the 
United  States. 

That  this  ground  was  subsequently  entirely  abandoned,  but  a  claim 
was  then  made  to  exclusive  jurisdiction  over  100  miles  from  the  coast- 
line of  the  United  States'  territory. 

That  subsequently  a  further  claim  has  been  set  up  to  the  eflFect  that 
the.United  States  have  a  property  in  and  a  right  of  protection  over  fur- 
seals  in  nonterritorial  waters. 

It  will  be  necessary,  in  order  to  expose  the  error  of  this  statement,  to 
briefly  review  the  several  stages  of  the  controversy,  and  draw  atten- 
tion to  the  grounds  upon  which  the  Government  of  the  United  States 
has  taken  its  positions. 

It  was  in  September,  1886,  that  the  attention  of  that  Government  was 
first  called  by  Sir  L.  S.  Sackville-West,  Her  Majesty's  minister  at  Wash- 
ington, to  a  reported  seizure  in  Bering  Sea  of  three  British  sealing 
vessels  by  a  United  States  cruiser.  Information  only  respecting  the 
affair  was  at  first  asked  for,  and  considerable  delay  occurred  in  procuring 
it;  but,  prior  to  September,  1887,  copies  of  the  records  from  the  United 
States  District  Courtof  Alaska  of  the  seizure  and  condemnation  of  these 
vessels  had  been  fiiruisUed  t^  the  British  Goverumeut.    It  appeared 


80 


ARGUMENT   OP  THE   UNITED   STATES. 


from  tlioso  that  the  soi/Jires  wore  in  ide  in  Bering  Sea  at  a  greater 
distauc-e  than  tliree  miles  from  tlie  land;  and  thereupon  Lonl  Salisbury, 
apparently  assuming  that  the  statutes  of  the  [Jnited  States  which  au- 
thorized the  seizures,  were  based  upon  some  supposed  jurisdietiou  over 
lieiing  Sea  ac(iuired  from  Russia,  addressed  a  not(^  to  Sir  L.  S.  Sack- 
vi lie  West,  in  which  he  called  attention  to  the  Russian  ukase  of  1821, 
which  asserted  a  peculiar  right  in  that  sea,  the  objections  of  the 
United  States  and  Great  JJritain  to  that  assertion,  and  the  treaties 
between  those  two  nations,  respectively,  and  Russia  of  1824  and  1825, 
and  insisted  that  these  documents  furnished  evidence  conclubively  show- 
ing tluit  the  seizures  were  unlawful.' 

The  United  States  Government  did  not  then  reply  to  the  point  thus 
raised;  but  its  first  attitude  in  relation  to  the  matter  was  to  suggest, 
by  notes  addressed  to  the  difterent  maritime  nations,  that  a  peculiar 
property  interest  was  involved,  which  might  justify  the  United  States 
Government  in  exercising  an  exceptional  marine  jurisdiction;  but  that 
inasmuiih  as  the  race  of  fur-seals  was  of  great  importance  to  commerce 
and  to  mankind,  it  seemed  the  part  of  wisdom  for  the  nations  to  con- 
sider whether  some  concurrent  measures  might  not  be  agreed  to  which 
would,  at  the  same  time,  preserve  the  seals  and  dispose  of  the  cause  of 
possible  controversy.*  The  first  attitude,  therefore,  taken  by  the  United 
States  was  the  suggestion  of  a  property  interest,  and  of  an  exceptional 
maritime  right  to  protect  it  by  preventing  the  destruction  of  the  seals; 
but  that  all  nations  ought  to  unite  in  measures  which  would  preserve 
them,  and  thus  avoid  occasion  for  controversy  concerning  the  right. 

On  the  22d  of  January,  1890,  Mr.  Blaine,  who  had  succeeded  Mr. 
Bayard  as  Secretary  of  State,  had  occasion  to  make  answer,  in  a  note 
to  Sir  Julian  Pauncefote,  to  further  complaints  on  the  part  of  the 
British  Government  concerning  the  course  of  the  United  States 
cruisers  in  intercepting  Canadian  vessels  while  engaged  in  taking  fur- 
seals  in  the  waters  of  Bering  Sea.  In  the  outset  of  his  communica- 
tion Mr.  Blaine  begins  by  pointing  out  that  it  is  unnecessary  to  discuss 
any  question  of  exclusive  jurisdiction  in  the  United  States  over  the 
waters  of  that  sea,  because  there  were  other  grounds  upon  which  the 
(loursc  of  the  United  States  was,  in  his  opinion,  fully  iustifled.  He  thus 
expresses  himself: 

In  the  opinion  of  the  President,  the  Canadian  vessels  arrested  and 
detained  in  tlie  Behring  Sea  were  engaged  in  a  pursuit  that  was  in  itself 

— ^- — ' — ■ . 

'  Case  of  the  United  States.    Appendix,  Vol.  i,  p.  162. 
?Caae  of  tlie  Uuitod  States.    Appendix,  Vol.  i,  p.  168, 


JIIKISUICTIONAL    AND    OTMKR    lilOHTa    OVKR    IIHRINO    SEA.       31 

contra  bonos  mores,  a  pursuit  vlii<'li  of  necessity  involves  a  serious  and 
pornianeut  iiijuiy  to  tlie  riglits  of  tlie  (Joveriiineut  and  people  of  the 
United  States.  To  establish  this  {jroniid  it  is  not  necessary  to  arf,'ne 
the  question  of  the  extent  and  nature  of  the  sovereijjnty  of  tliis  (lov- 
ernnient  over  the  waters  of  the  Px'hrinf;-  Sea;  it  is  not  necessary  to 
explain,  certainly  not  to  define,  the  powers  and  privilef^es  ceded  by  His 
Imperial  Majesty  the  Eniperor  of  Kussia  in  the  treaty  by  wiiii-h  the 
Alaskan  territory  was  transferred  to  the  United  States.  The  weij^hty 
considerations  growing-  out  of  the  acquisition  of  that  territory,  with 
all  the  rights  on  land  and  sea  inseparably  connected  tlu^rewith,  may  be 
safely  left  out  of  view,  while  the  grounds  are  set  forth  upon  which  this 
(lovernment  rests  its  justittcation  for  the  action  complained  of  by  Her 
Majesty's  Government. 

Mr.  Blaine  then  proceeds  to  point  out  tluit  long  before  the  acquisi- 
tion of  Alaska  by  the  United  States  the  fur-seal  industry  had  been 
established  by  Russia  upon  the  Pribilof  Islands,  and  that  while  she 
had  control  over  them,  her  possession  and  enjoyment  thereof  were  in 
no  way  disturbed  by  other  imtions ;  that  the  United  States,  since  the 
cession  of  1867,  had  continued  to  carry  on  the  industry,  cherishing  the 
herd  of  fur-seals  on  those  islands  and  enjoying  the  advantage  thereof; 
that  in  the  year  1886,  vessels,  mostly  Canadian,  were  fitted  out  for 
the  purpose  of  taking  seals  in  the  open  sea,  and  that  tlie  number 
of  vessels  engaged  in  the  work  had  continually  incireased;  that  they 
engaged  in  an  indiscriminate  slaughter  of  the  seals,  very  injurious  to 
the  industry  prosecuted  by  the  United  States,  and  threatening  the  e 
termination,  substantially,  of  the  species.  He  insisted  that  the  gr'  >  id 
upon  which  Her  Majesty's  Government  was  disposed  to  defend  loso 
Canadian  vessels,  viz.,  that  their  acts  of  destruction  were  committed  -t  a 
distance  of  more  than  three  miles  from  the  shore  line,  was  wholly  insui- 
ficient;  that  to  exterminate  an  animal  useful  to  mankind  was  in 
itself  in  a  high  degree  immoral,  besides  being  injurious  to  the  interests 
of  the  United  States;  that  the  "law  of  the  sea  is  not  lawlessness,"  and 
that  the  liberty  which  it  confers  could  not  be  "  perverted  to  justify 
acts  which  are  immoral  '!i  themselves,  and  which  inevitably  tend  to 
results  against  the  interests  and  against  the  welfare  of  mankind." 

It  is,  therefore,  entirely  dear  that  Mr.  Blaine  improved  the  first 
occasion  upon  which  he  was  called  upon  to  refer  to  the  subject,  to  place 
the  claims  of  the  United  States  distinctly  on  the  ground  of  a  property 
interest,  which  could  not  be  interfered  with  by  other  nations  upon  the 
high  seas  by  practices  which  in  themselves  Avere  essentially  immoral 
and  contrary  to  the  law  of  nature.' 


fl 


*Mr.  Blaino  to  Sir  Juliau  Pauuccfote,  Case  of  tbeUuitod  States,  Appendix,  Vol.  i 
p.  200. 


I 


32 


ARGUMENT   OP  THE   UNITED   STATES. 


This  correspondence  was  followed  by  fiirtlier  diplomatic  communica- 
tions looking  to  the  establishment  of  regulations  designed  to  restrict 
pelagic  sealing;  and  on  the  22d  of  May,  1890,  the  Marquis  of  Salis- 
burj  addressed  a  note  to  Sir  Julian  Paixncefote,  in  the  nature  of  an 
answer  to  the  note  last  above  mentioned  from  Mr.  Blaine,  and  it  ap- 
pears fron  this,  very  clearly,  that  he  did  not  misunderstand  the  posi- 
tions taken  by  Mr.  Blaine.    He  thus  expresses  himself : 

Mr.  Blaine's  note  defends  the  acts  complained  of  by  Her  Mjyesty's 
Government  on  the  following  ground: 

1.  That  "  tilt)  Canadian  vessels  arrested  and  detained  in  the  Behring 
Sea  were  engaged  in  a  pursuit  that  is  in  itself  contra  bonos  mores — a 
pursuit  which  of  necessity  involves  a  serious  and  permanent  injury  to 
the  rights  of  the  Government  and  people  of  the  United  States". 

2.  That  the  fisheries  had  been  in  the  undisturbed  possession  and 
under  the  exclusive  control  of  Eussia  from  their  discovery  until  the 
cession  of  Alaska  to  the  United  States  in  1867,  and  that  from  this  date 
onwards  until  1886  they  had  also  remained  in  the  undisturbed  posses- 
sion of  the  United  States  Government. 

3.  That  it  is  a  fact  now  held  beyond  denial  or  doubt  that  the  taking 
of  seals  in  the  open  sea  rapidly  leads  to  the  extinction  of  the  species, 
and  that  therefore  nations  !;ot  possessing  the  territory  upon  which  seals 
can  increase  their  numbers  by  natural  growth  should  refrain  from 
the  slaughter  of  them  in  the  open  sea. 

Lord  Salisbury,  ?.n  this  note,  ins'ets  that  whatever  may  be  the  value 
of  the  industry  to  the  United  Staies,  they  would  not  be  authorized  in 
preventing  by  force  the  practice  of  pelagic  sealing;  but  he  does  not 
choose  to  enter  into  any  discussion  of  the  question  whether  the  indis- 
criminate slaughter  of  seals  manifestly  tending  to  the  extermination  of 
the  species  could  b'e  justified.  His  lordship,  however,  in  answer  to  the 
alleged  exclusive  monopoly  of  Russia  in  the  far-seal  industry,  referred 
tti  the  Russian  ukase  of  1821,  as  if  Mr.  Blaine  had  insisted  upon  claims 
similar  to  those  advancti'  in  tim'c  document,  and  quoted  some  lan- 
guage from  a  communication  of  Mr.  John  v'^uincy  Adams,  when  Secre- 
ary  of  State,  to  theUuited  States  minister  in  Russia,  contesting  the 
pretension  set  up  in  the  ukase.^ 

Meanwhile  further  diplomatic  communications  were  taking  place  in 
relation  to  the  establishment  of  restrictions  designed  to  limit  the  prac- 
tice of  pelagic  sealing  and  pi-evont,  in  some  measure  at  least,  its  de- 
structive operation ;  and  it  would  seem  that  these  efforts  had  been 
nearly  successful,  and  would  liave  been  entirely  consummated,  but  for 
objections  interjioscd  on  the  part  of  Canada.'* 


Tnso  of  the  United  States,  Appexdix,  Vol.  i,  p.  207. 

•  Caec  of  tlie  Uuitod  ytatoe,  Appendix,  Vol.  i,  pp.  212-224, 


JURISDICTIONAL   AND    OTHER   RIGHTS   OVER   BERING   SEA.      33 


On  the  30tb  of  June,  1890,  Mr.  Blaine  addressed  a  note  to  Sir  Julian 
Pauncefote  in  which  he  referred  to  Lord  Salisbury's  note,  above  men- 
tioned, of  May  22,  and  especially  to  the  passage  quoted  in  it  from  the 
communication  of  Mr.  John  Quincy  Adams  to  ;he  American  minister 
in  Eussia,  in  which  the  pretensions  advanced  y  Eussia  in  the  ukase 
of  1821  were  resisted.  He  endeavored,  in  an  ai  guraent  of  some  length, 
to  show  that  the  cliiim  set  up  by  Eussia  in  1821  to  a  peculiar  jurisdic- 
tion had  not  been  surrendered  by  the  treaties  of  1824  and  1825  with  the 
United  States  and  Great  Britain,  respectively,  so  far  as  related  to 
Bering  Sea,  and  had  not  been  otherwise  abandoned.  He  insisted  that 
the  ukase  of  1821,  while  not  designed  to  declare  the  Bering  Sea  to  be 
mare  clavsum,  assumed  to  exclude,  for  certain  purposes  at  least,  other 
nations  from  a  space  on  the  high  seas  to  the  distance  of  100  miles  from 
the  shore,  and  that  this  pretension  on  the  part  of  Eussia  had  never 
been  surrendered  or  abandonee*  ind  had  been,  in  substance,  acquiesced 
in  by  other  nations,  and  in  particular  by  Great  Britain.' 

The  views  thus  expressed  by  Mr.  Blaine,  which  were  really  not  essen- 
tial to  the  main  controversy,  and  were  drawn  from  him  by  the  reference 
which  Lord  Salisbury  had  made  to  the  Eussian  ukase  of  1821,  and  the 
K«ubsequent  protests,  negotiations,  and  treaties  between  Eussia  and  the 
United  States  and  Great  Britain,  respectively,  were  responded  to  in  a 
note  from  Lord  Salisbury  to  Sir  Julian  Pauncefote  of  August  2, 1890.' 
In  this  note  his  lordship  considered  the  subject  at  much  length,  and 
argued  that,  on  general  principles  of  international  law,  no  nation  can 
rightfully  claim  jurisdiction  at  sea  beyond  a  marine  league  from  the 
coast.  This  general  principle,  so  far  as  it  is  one,  had  never  been  denied 
by  Mr.  Blaine,  his  position  being  that  there  might  be,  and  in  some  in- 
stances were,  cases  which  called  for  oxceptions  from  the  operation  of 
the  general  rule,  so  far,  at  least,  as  to  give  a  nation  a  right  to  exclude, 
for  certain  purposes,  foreign  vessels  from  a  belt  of  the  sea  much  wider 
than  three  miles. 

On  the  17th  of  December,  1890,  Mr.  Blaine,  in  a  note  to  Sir  Julian 
Pauncefote,'-'  referred  to  the  note  of  Lord  Salisbury,  last  mentioned,  and 
veajjscrtpd.  bis  j)osition.  The  controversy  respecting  the  claims  of 
Eu?dia  now  bt'c.ame,  substantially,  whether,  in  the  treaties  of  1824 
unu  1825  between  the  United  States  and  Great  Britain,  respectively, 

'Ca«e  of  the  United  States.  '  ppendix,  Vol.  T,  p.  221. 
•Case  of  tho  United  ISintea,  Appendix,  Vol.  i,  p,  242. 
'C'lMe  of  tho  Uuitod  States,  Appeudix,  Vol.  i,  p.  263. 
14749 3 


34 


ARGUMENT    OF   THE   UNITED    STATES. 


the  term  "Pacific  Ocean,"  as  used  in  the  treaties,  was  intended  to 
include  the  body  of  water  now  known  as  Bering  Sea.  If  it  were  true, 
as  Lord  Salisbury  contended,  that  Bering  Sea  was  thus  included,  then 
it  would  follow  that  the  pretensions  made  by  Eussia  in  the  ukase  of 
1821,  so  far  as  they  were  surrendered  by  the  treaties  above  referred  to, 
were  surrendered  as  well  in  respect  to  Bering  Sea  as  in  respect  to  the 
Pacific  Ocean  south  of  t'-.<it  sea.  If,  on  the  other  hand,  as  Mr.  Blaine 
contended,  Bering  Sea  wa^  not  intended  to  be  embraced  by  the  term 
"Pacific  Ocean,"  it  wo'M  f  :  v  that  the  assertions  of  jurisdiction  in 
Bering  Sisa  made  by  th  iv!  .  of  1821  had  received  a  very  large  meas- 
ure of  acquiescence  both  from  Great  Britain  and  th   United  States. 

But,  in  the  opinion  of  the  undersigned,  the  point,  though  not  T^holly 
irrelevant,  is,  comparatively  speaking,  unimportant.  It  was  never  put 
forward  by  the  United  States  as  the  sole  ground,  or  as  the  principal 
ground,  upon  which  that  Government  rested  its  claims.  Notwithstand- 
ing the  large  space  devoted  to  it  in  the  diplomatic  discussions,  it  came 
in  incidentally  only.  It  is  not  at  all  improbable  that  Lord  Salisbury 
preferred  to  draw  the  discussion  as  much  as  possible  away  from  the 
question  of  property  interests,  and  aw;\v  from  tlie  charge  that  pelagic 
sealing  was  a  practice  which  threaten ci  a  Tiseful  race  of  animals  with 
extermination,  and  was  wholly  destruc  ot"  support  upon  any  grounds 
of  reason.  It  may  be  true  also  tl>'  '■,  ."'<  y-iaine  in  some  measure  mag- 
nified the  eflfect  which  might  flow  iiun;  ri>  ,  pretensions  made  by  Russia 
in  the  ukase  of  1821,  so  far  as  tLcy  were .  jv:  esced  in  by  Great  Britain 
and  the  United  States. 

But  what  is  absolutely  certain  is  that  the  original  attitude  takon  by 
the  United  States,  as  already  mentioncjl,  folhnved  up  and  reasserted  in 
more  than  one  diplomatic  communication,  was  never,  at  any  time,  in 
the  slightest  degree  abandoned  or  changed,  and  this  is  conclusively 
evidenced  by  the  last  communiea  ,  i>  of  Mr.  Blaine,  already  referred  to. 
Near  the  close  of  that  note*  he  i  m  a: 

In  the.iudgment  of  the  President,  nothing  of  importance  would  be 
settled  by  proving  that  Great  Biitain  conceded  no  jurisdiction  to 
Kussia  over  tV.o  s)-„i  fisheries  of  the  Bering  Sea.  It  might  as  well  be 
proved  'at  liuf.siii  i^inceded  no  jurisdiction  to  England  over  the  river 
Thamet  By  do^  i^  /lothing  in  each  case,  everything  is  conceded.  In 
neithei  cas3  is  anything  asked  of  the  other.  "Concession,"  as  used 
here,  means  simply  acquu'sccnce  in  the  rightfulness  of  the  title,  and 
that  Js  the  only  form  of  concession  which  Kussia  asked  of  Great 
Britain  or  which  Great  Britain  gave  to  linssia. 


•Case  of  the  United  States,  Appendix,  Vol.  i,  p.  285. 


JURISDICTIONAL   AND    OTHER   RIGHTS   OVER   BERING   SEA.     35 


The  second  oflfer  of  Lord  Salisbury  to  arbitrate,  amounts  simply  to  a 
submission  of  the  question  whether  any  country  has  a  right  to  extend 
its  jurisdiction  more  than  one  marine  league  from  the  shore.  No  one 
disputes  that,  as  a  rule;  but  the  question  is,  whether  there  may  not  be 
exceptions  whose  enforcement  does  not  interfere  with  those  highways  of 
commerce  which  the  necessities  and  usage  of  the  world  have  marked 
out.    *    *    * 

The  "epeated  assertions  that  the  Government  of  the  United  States 
demands  that  the  Bering  Sea  be  pronounced  mare  clauaum,  are  with- 
out foundation.  Tlie  Government  has  never  claimed  it  and  never  de- 
sired it.  It  expressly  disavows  it.  At  the  same  time  the  United  States 
does  not  lack  abundant  authority,  according  to  the  ablest  exponents  of 
international  law,  for  holding  a  small  section  of  the  Bering  Sea  for 
the  protection  of  the  fur-seals.  Controlling  a  comparatively  restricted 
area  of  water  for  that  one  specific  purpose  is  by  no  means  the  equiva- 
lent of  declaring  the  sea,  or  any  part  thereof,  mare  clausum.  Nor  is  it 
by  any  means  so  serious  an  obstruction  as  Great  Britian  assumed  to  make 
in  the  South  Atlantic,  nor  so  groundless  an  interference  with  the  com- 
mon law  of  the  sea  as  is  maintained  by  British  authority  to-day  in  the 
Indian  Ocean.  The  President  does  not,  however,  desire  the  long  post- 
ponement which  an  examination  of  legal  authorities  from  Ulpian  to 
Phillimore  and  Kent  would  involve.  He  finds  his  own  views  well  ex- 
pressed by  Mr.  Phelps,  our  late  minister  to  England,  when,  after  failing 
to  secure  a  just  arrangement  with  (ireat  Britain  touching  the  seal 
fisheries,  he  wrote  the  following  in  his  closing  communication  to  his  own 
Government,  September  12, 1888: 

"  Much  learning  has  been  expended  upon  the  discussion  of  the  ab- 
stract question  of  the  right  of  mare  clausum.  I  do  not  conceive  it  to  be 
applicable  to  the  present  case. 

"  Here  is  a  valuable  fishery  and  a  large  and,  if  properly  managed, 
permanent  industry,  the  property  of  the  nation  on  whose  shores  it  is 
carried  on.  It  is  proposed  by  the  colony  of  a  foreign  nation,  in  defi- 
ance of  the  joint  remonstrance  of  all  the  countries  interestea,  to  de- 
stroy this  business  by  the  indiscriminate  slaughter  and  extermination 
of  the  animals  in  question,  in  the  open  neighboring  sea,  during  the 
period  of  gestation,  when  the  common  dictates  of  humanity  ought  to 
protect  them,  were  there  no  interest  at  all  involved.  And  it  is  sug- 
gested that  we  are  prevented  from  defending  ourselves  against  such 
depredations  because  the  sea  at  a  certain  distance  from  tlie  coast  is  free. 

"The  same  line  of  argument  would  take  under  its  protection  piracy 
and  the  slave  trade  when  prosecuted  in  the  open  sea,  or  would  justify 
one  nation  in  destroyingthecommerceof  anotlier  by  jilacing dangerous 
obstructions  and  derelicts  in  the  open  sea  near  its  coasts.  There  are 
many  things  that  can  not  bf  allowed  to  be  done  on  the  open  sea  with 
impunity,  and  against  which  every  sea  is  mara  Jauaum ;  and  the  right  of 
self-defense  as  to  person  and  pioperty  prevails  there  as  fully  as  else- 
where. If  the  fish  upon  Canadian  coasts  could  be  destroyed  by  scat- 
tering poison  in  tlie  open  sea  adjacent,  with  some  small  jwofit  to  those 
engaged  in  it,  would  Canada,  upon  the  just  principles  of  international 
law,  be  held  defenseless  in  such  a  case?  Yet  that  process  would  be  no 
more  destructive,  inhuman,  and  wanton  than  this. 

"  If  precedents  are  wanting  for  a  defense  so  necessary  and  so  proper, 
it  ie  because  precedents  for  such  a  course  of  conduct  are  liiiewise  un- 
known. The  best  international  law  has  arisen  from  precedents  that 
have  been  established  when  tlie  just  occasion  for  them  arose,  undeterred 
by  the  discussion  of  abstract  and  inadequate  rules." 


36 


ARGUMENT  OF  THE  UNITED  STATES. 


The  design  of  the  foregoing  review  of  the  principal  points  made  in 
the  diplomatic  discussions  which  preceded  the  Treaty  under  which  this 
Tribunal  was  constituted  has  been  to  show  that  the  main  grounds  upon 
which,  from  first  to  last,  the  claims  of  the  United  States  were  based 
were  the  property  and  industrial  interests  of  that  nation;  and  that  the 
purpose  of  Mr.  Blaine,  in  taking  up  the  discussion  tendered  by  Lord 
Salisbury  in  relation  to  the  ukase  of  1821  and  the  subsequent  treaties 
of  1824  and  1825,  was  simply  to  point  out  that  the  assertions  by  Russia 
of  exceptional  authority  over  certain  portions  of  the  high  seas  were, 
so  far  as  respects  Bering  Sea,  not  only  never  abandoned  by  her,  but 
were  practically  conceded  and  acquiesced  in  by  Great  Britain,  and 
that,  consequently,  the  United  States  could  assert  against  Great  Brit- 
ain a  i"ight  to  protect  their  sealing  interests,  not  only  upon  general 
principle^  of  international  law,  but  upon  the  additional  and  reinforc- 
ing ground  that  Russia,  in  order  to  dei<^ud  the  same  interests,  had 
asserted  and  exercised  an  exceptional  authority  over  Bering  Sea  for 
nearly  half  a  century  with  the  acquiescence  of  Great  Britain,  and  that 
any  right  thus  acquired  had  passed  to  the  United  States  by  the  cession 
of  Alaska. 

In  the  view  of  the  undersigned,  Mr.  Blaine  was  entirely  successful 
in  establishing  his  contention  that  the  assertion  by  Russia  of  an  ex- 
ceptional authority  over  the  seas,  including  an  interdiction  of  the 
approach  of  any  foreign  vessel  within  100  miles  of  certain  designated 
shores,  while  abandoned  by  her  treaty  with  Great  Britain  in  1825  as  to 
all  the  northwest  coast  south  of  the  COth  parallel  of  north  latitude, 
was,  so  ftir  as  respects  Bering  Sea,  and  the  islands  thereof,  and  the  coast 
south  of  the  60th  parallel,  never  abandoned  by  her,  but  was  acquiesced 
in  by  Great  Britain.  And  if  the  undersigned  believed  the  point  to  be 
one  upon  which  any  of  the  claims  of  the  United  States  really  depended, 
they  would  deem  it  their  duty  to  again  present  the  argument  of  Mr. 
Blaine,  together  with  further  suggestions  which  would  reinforce  it. 
But  they  greatly  prefer  to  place  the  case  of  the  United  States  upon  its 
real  and  original  grounds,  which,  as  it  seems  to  them,  admit  of  no  dis- 
pute, and  not  to  rely  upon  arguments  which,  however  successful  in  their 
avowed  purposes,  are  yet,  perhaps,  to  be  deemed  somewhat  aside  from 
the  main  question.  Tliey  prefer  to  submit  to  this  Tribunal  that  Russia 
had  for  nearly  a  century  before  the  cession  of  Alaska  established  and 
maintained  a  valuable  industry  upon  the  Pribilof  Islands,  founded 
upon  a  clear  and  indisputable  property  interest  in  the  fur-seals  which 


JURISDICTIONAL   AND   OTHER   RIGHTS   OVER   BERING   SEA.     37 

make  those  islands  their  breeding  places,  an  industry  not  only  prof- 
itable to  herself,  but  in  a  high  degree  useful  to  mankind;  that  the 
United  States  since  tlie  cession  have,  upon  the  basis  of  the  same  property 
interest,  carefully  maintained  and  cherished  that  industry,  and  that  no 
other  nations,  or  other  men,  have  any  right  to  destroy  or  injm-e  it  by 
prosecuting  au  inhuman  and  destructive  warfare  upon  the  seal  in  clear 
violation  of  natural  law;  and  that  the  United  States  have  fiill  and  per- 
fect right,  under  the  law  of  nations,  to  prevent  this  destructive  warfare 
by  the  reasonable  exercise  of  necessary  force  wherever  upon  the  seas 
such  exercise  is  necessary  to  the  protection  of  their  property  and  indus- 
try. The  undersigned  therefore  submit  the  question  concerning  the 
assertions  of  maritime  authority  by  Russia  and  the  acquiescence  therein 
by  Great  Britain  upon  the  argument  of  Mr.  Blaine,  contained  in  his 
notes  to  Sir  Julian  Pauncefote  of  June  30, 1890, '  and  December  17, 
1890.* 

It  is,  however,  important  that  the  real  nature  of  these  assertions 
should  not  be  misunderstood.  The  words  "  exclusive  jurisdiction  in 
Bering  Sea "  are  used  in  the  questions  formulated  in  the  treaty  by 
way  of  description  of  the  claims  of  Eussia,  and  the  same,  or  similar,  lan- 
guage will  be  found '  in  various  places  in  the  diplomatic  argument  to 
have  been  employed  in  a  like  sense.  From  this  it  might  be  thought 
that  what  Eussia  was  supposed  to  have  asserted,  and  what  the  United 
States  claimed  as  a  right  derived  from  her,  was  a  sovereign  jurisdiction 
over  some  part  of  Bering  Sea,  making  it  a  part  of  their  territory  and 
subject  to  their  laws.  This  would  be  entirely  erroneous.  Eussia  never 
put  forward  any  such  pretension.  Her  claims  were  that  certain  shores 
and  islands  on  the  Northwest  coast  and  in  the  Pacific  Ocean  and  Ber- 
ing Sea  Avere  part  ot  her  territory,  acquired  by  discovery  and  occupa- 
tion, upon  which  she  had  colonial  establishments  and  fishing  and  seal- 
ing industries.  She  chv.  .e,  in  accordance  with  the  policy  of  the  time, 
to  confine  the  right  to  trade  with  these  coh)nies,  and  the  fishing  and  fur- 
gathering  industries  connected  with  those  territorial  possessions,  to  her- 
self. Concerning  her  right  to  do  this  there  never  was,  or  could  be,  any 
dispute.  So  far  as  her  pretensions  to  exercise  an  exceptional  umritirae 
authority  were  concerned,  they  were  limited  to  such  measures  as  she 
deemed  necess.iry  for  the  protection  of  these  admitted  rights.  She 
did  not  claim  to  make  laws  for  the  sea.  The  particular  assertion 
of  authority  which  was  the  interesting  point  in  the  discussion  be- 


'Case  of  the  Uuitod  States,  Appomlix,  Vol.  i,  p.  221. 


tlbid,  p.  263. 


88 


ARGUMENT   OP  THE   UNITED   STATES. 


tween  Mr.  Blaine  and  Lord  Salisbury  was  the  interdiction  to  foreign 
vessels  of  an  approach  to  the  shores  and  islands  referred  to  nearer 
than  100  miles.  This,  of  course,  was  no  assertion  of  exclusive  juris- 
diction, or  of  jurisdiction  at  all,  in  the  strict  sense  of  that  terra. 
It  was  the  assertion  of  a  right  to  protect  interests  attached  to  the 
shore  fifom  threats  and  danger  of  invasion.  It  was  in  no  wise  dif- 
ferent in  its  nature  from  a  multitude  of  assertions  of  a  right  to 
exercise  national  authority  over  certain  parts  of  the  sea  made  by 
different  nations  before  and  since,  and  by  none  more  frequently  or  ex- 
tensively than  by  Great  Britain.  It  was  an  assertion  of  power  essen- 
tially the  same  as  that  of  which  the  hovering  laws  are  instances.  The 
extent  of  the  interdiction  from  the  shore — 100  miles — might  have  been 
extreme,  although  this  is  by  no  means  certain.  A  distance  which 
would  be  excessive  in  the  case  of  a  frequented  coast,  the  pathway  of 
abundant  commerce,  might  be  entirely  reasonable  in  a,  remote  and  almost 
uninhabited  quarter  of  the  globe  to  which  there  was  little  occasion  for 
vessels  to  resort  except  for  the  purpose  of  engaging  in  prohibited  trade. 
It  must  be  remembered  that  the  interdiction  was  not  made  for  the  pur- 
pose of  preventing,  or  restricting,  pelagic  sealing.  That  pursuit  had 
not  even  been  thought  of  at  that  time.  Had  that  danger  then  threat- 
ened the  sealing  interests  of  Eussia  a  much  more  extensive  restriction 
might  justly  have  been  imposed. 

As  already  observed  it  is  not  intended  by  the  undersigned  to  inti- 
mate that  the  question  what  authority  over  Bering  Sea  Eussia  claimed 
the  right  to  exercise  and  how  far  the  claim  was  acquiesced  in  by  Great 
Britain,  has  no  importance  in  the  present  controversy ;  but  to  point  out 
the  nature  of  that  claim,  and  to  indicate  its  appropriate  place  in  the 
present  discussion.  It  has  a  very  distinct  significance  as  showing  that 
assertions  on  the  part  of  Eussia  of  a  right  to  defend  and  protect  her 
colonial  trade  and  local  industries  by  the  reasonable  exercise  of  force 
in  Bering  Sea  were  assented  to  by  Great  Britain  during  the  whole 
period  of  the  Eussian  occupation  of  Alaska,  and,  by  consequence,  that 
the  present  complaints  of  the  latter  against  a  siniikir  exercise  of  power 
by  the  United  States  are  wholly  inconsistent  with  her  former  attitude 
and  admissions. 

Again  referring  to  the  broad  distinction  between  that  power  of  sov- 
ereign jurisdiction  exercised  by  a  nation  over  nonterritorial  waters, 
which  consists  in  the  enactment  of  municipal  laws  designed  to  be  opera- 
tive upon  such  waters  against  the  citizens  of  other  nations,  and  the 
exercise  of  authority  and  power  over  such  waters  limited  to  the  neces- 


JURISDICTIONAL   AND   OTHER   RIGHTS   OVER   BERING   SEA.     39 


sary  defense  of  its  property  and  local  interests,  the  undersigned  insist 
that  the  former  has  no  material  place  in  this  discussion.  Eussia  never 
insisted  upon  it  so  far  as  respects  the  regions  to  which  our  attention  is 
directed,  or  the  industry  of  sealing  which  is  here  a  subject  of  discus- 
sion. The  United  States  never  have  claimed  it  and  do  not  now  claim 
it.  Themselves  a  maritime  nation,  thev  assert,  as  they  always  have 
asserted,  the  freedom  of  the  seas.  But  tliey  suppose  it  to  be  quite  cer- 
tain that  the  doctrine  of  the  freedom  of  the  seas  has  never  been  deemed 
by  civilized  nations  as  a  license  for  illegal  or  immoral  conduct,  or  as  in 
any  manner  inconsistent  with  the  general  and  necessary  right  of  self- 
defense  above  mentioned,  which  permits  a  nation  to  protect  its  property 
and  local  interests  against  invasion  hy  wrongdoer  wherever  upon  the 
sea  the  malefactors  may  be  found.  This  right  and  the  grounds  and' 
reasons  upon  which  the  present  caSe  calls  for  an  application  of  it,  are 
directly  embraced  by  the  Fifth  Question  which  is  submitted  to  the  Tri- 
bunal, and  are,  in  tlie  opinion  of  the  undersigned,  the  proper  subjects 
of  principal  attention,  and  they  will  elsewhere,  in  the  appropriate 
place,  devote  to  them  that  deliberate  and  full  consideration  which 
importance  their  demands. 

We  may,  however,  briefly  observe  here,  that  according  to  the  best 
authorities  in  international  law  the  occupation  of  a  new  country  which  is 
sufficient  to  give  to  the  occupying  nation  a  title  to  it  depends  very 
largely  upon  the  nature  of  the  country  and  the  beneficial  uses  which  it 
may  be  made  to  subserve.  In  the  case  of  a  fruitful  region  capable  of 
supporting  a  numerous  po[)ulation,  it  might  not  be  allowable  for  a 
nation  first  discovering  it  to  maintain  a  claim  over  vast  areas  which  it 
did  not  actually  occupy  and  attempt  to  improve;  but  where  a  remote 
and  desolate  region  has  been  discovered,  yielding  only  a  single  or 
few  products,  and  all  capable  of  being  beneficially  secured  by  the  dis- 
covering nation,  a  claim  to  these  products  asserted  and  actually  exer- 
cised, is  all  the  occupation  of  which  the  region  is  susceptible  and  is 
sufiic.ient  to  confer  the  right  of  property;  and  that  whatever  au- 
thority it  may  be  reasonably  necessary  to  exercise  upon  the  adjoin- 
ing seas  in  order  to  protect  such  interests  from  invasion  may  properly 
be  asserted.  Says  Philliniore,  who  seems  to  have  understood  the  Ore- 
gon territory  as  embracing  the  whole  northwest  coast  of  North  America: 

A  similar  settlement  was  founded  by  the  British  and  Eussian  Fur 
Companies  in  North  Americ^a. 

The  chief  portion  of  the  Oregon  Territory  is  valuable  solely  for  the 
ftir-bearing  animals  which  it  produces.     Various  establishments  in 


40 


ARGUMENT   OF   THE    UNITED    STATES. 


dififerent  parts  of  this  territory  organized  a  system  for  securing  the 
preservation  of  these  animals,  and  exercised  for  these  purixtses  a  con- 
trol over  the  native  population.  This  was  rightly  contended  to  be  the 
only  exercise  of  proprietary  right  of  which  these  particular  regions 
were  at  that  time  susceptible,  and  to  mark  that  a  beneficial  use  was 
made  of  the  whole  territory  by  the  occupants.' 

The  first  four  questions  submitted  to  the  Tribunal  by  the  Treaty 
should,  in  the  opinion  of  the  undersigned,  be  answered  as  follows: 

First.  Russia  never  at  any  time  prior  to  the  cession  of  Alaska  to 
the  United  States  claimed  any  exclusive  jurisdiction  in  the  sea  now 
known  as  Bering  Sea,  beyond  what  are  commonly  termed  territorial 
waters.  She  did,  at  all  times  since  the  year  1821,  assert  and  enforce 
an  exclusive  right  in  the  "  seal  fisheries  "  in  said  sea,  and  also  asserted 
and  enforced  the  right  to  protect  her  industries  in  said  "  fisheries"  and 
her  exclusive  interests  in  other  industries  established  and  maintained 
by  her  upon  the  islands  and  shores  of  said  sea,  as  well  as  her  exclusive 
enjoyment  of  her  trade  with  her  colonial  establishments  upon  said 
islands  and  shores,  by  establishing  prohibitive  regulations  interdicting 
all  foreign  vessels,  except  in  certain  specified  instances,  from  approach- 
ing said  islands  and  shores  nearer  than  100  miles. 

Second.  The  claims  of  Russia  above  mentioned  as  to  the  "  seal, 
fisheries"  in  Bering  Sea  were  at  all  times,  from  the  first  assertion 
thereof  by  Russia  down  to  the  time  of  the  cession  to  the  United  States, 
recognized  and  acquiesced  in  by  Great  Britain. 

Third.  "The  body  of  water  now  known  as  Behring  Sea  was  not 
included  in  the  phrase  *  Pacific  Ocean,'  as  used  in  the  treaty  of 
1825,  between  Great  Britain  and  Russia;"  and  after  that  treaty 
Russia  continued  to  hold  and  to  exercise  exclusively  a  property  right 
in  the  fur-seals  resorting  to  the  Pribilof  Islands,  and  to  the  fur-sealing 
and  other  industries  established  by  her  on  the  shores  and  islands  above 
mentioned,  and  to  all  trade  with  her  colonial  establishments  on  said 
shores  and  islands,  with  the  further  right  of  protecting,  by  the  exer- 
cise of  necessary  and  reasonable  force  over  Bering  Sea,  the  said 
seals,  industries,  and  colonial  trade  from  any  invasion  by  citizens  of 
other  nations  tending  to  the  destruction  or  injury  thereof. 

Fourth.  "All  the  rights  of  Russia  as  to  jurisdiction  and  as  to  the 
seal  fisheries  in  Bering  Sea  east  of  the  water  boundary  in  the  treaty 
between  the  U^ted  States  and  Russia,  of  the  30th  of  March,  1867,"  did 
"  pass  unimpaired  to  the  United  States  under  that  treaty." 

James  0.  Oartbb. 


'  Int.  Law,  vol.  i,  pp.  259,  260. 


PAOrEK'iT    IN    TUB   ALASKAN    SEAL    HEBD. 


41 


THIRD. 


THE  PROPERTY  OF  THE  UNITED  STATES  IN  THE  ALASKAN  SEAL 
HERD  AND  THEIR  RIGHT  TO  PROTECT  THEIR  SEALING  INTER- 
ESTS AND  INDUSTRY. 

I. — The   Property   of   the  United  States   in  the  Alaskan 

Seal  Heed. 

The  subject  which,  in  the  order  adopted  by  the  treaty,  is  i;ext  to  be 
considered,  is  that  of  the  assertion  by  the  United  States  of  a  property 
Interest  in  the  Alaskan  seals.  Under  this  head  there  are  two  ques- 
tions, which,  though  each  may  involve,  in  large  measure,  the  same  con- 
siderations, are  yet  in  certain  respects  so  difterent  as  to  make  it  neces- 
sary or  expedient  that  they  should  be  separately  diseussed.  The  first 
is  wiiether  the  United  States  have  a  property  interest  in  the  seals 
themselves,  not  only  while  they  are  ui)on  the  breeding  islands,  but  also 
while  they  are  in  the  high  seas.  The  second  is  whetlier,  if  they  have 
not  a  clear  property  in  the  seals  themselves,  they  have  such  a  property 
interest  in  the  industry  long  established  and  i)rosecutcd  on  the  Pribi- 
lof  Islands  of  maintaining  and  propagating  the  herd,  and  appropri- 
ating the  increase  to  themselves  for  the  purposes  of  commerce  and 
profit,  as  entitles  them  to  extend  their  protection  to  such  herd  against 
capture  while  it  is  on  the  high  seas,  and  to  require  and  receive  from 
other  nations  an  acquiescence  in  reasonable  regulations  designed  to 
afford  such  protection. 

The  material  ditference  between  these  questions  will  be  perceived 
from  a  glance  at  the  consequences  which  would  flow  from  adetermin.a- 
tion  of  each  of  them  respectively  in  favor  of  the  claims  of  the  Unite 
States.  If  it  were  determined  that  the  United  States  had  the  propei  y 
interest  which  they  assert  only  in  the  industry  established  on  the  shore, 
it  might,  with  some  show  of  reason,  be  insisted  that,  if  the  industry 
were  not  actually  established,  they  would  have  no  right  to  forbid  inter- 
ference with  the  seals  in  the  open  sea;  but  were  it  determined  that  the 
United  States  had  the  property  interest  which  they  assert  in  the  seals 
themselves,  it  would  follow  that  they  would  have  the  right  at  any  time 
to  take  measures  to  establish  such  an  industry,  and  to  forbid  any  inter- 


42 


ARGUMENT   OF    THE   UNITED   STATES. 


ferenco  with  the  seals  wliicL  would  tend  to  make  its  establishment 
impossible  or  difficult. 

The  proposition  which  the  undersigned  will  first  lay  down  and  en- 
deavor to  maintain  is  that  the  United  States  have,  by  reason  of  the 
nature  and  habits  of  the  seals  and  their  ownership  of  the  breeding 
grounds  to  which  the  herds  resort,  and  irrespective  of  the  established 
industry  above  mentioned,  a  property  interest  in  those  herds  as  well 
while  they  are  in  the  high  seas  as  upon  the  land. 

It  is  first  to  be  observed  that  although  the  established  doctrinesof 
municipal  law  may  be  properly  invoked  as  affording  light  and  informa- 
tion upon  the  subject,  the  question  is  not  to  be  determined  by  those 
doctrines.  Questions  respecting  property  in  lands,  or  movable  things 
which  have  a  fixed  situs  within  the  territorial  limits  of  a  nation  are, 
indeed,  to  be  determined  exclusively  by  the  municipal  law  of  that  na- 
tion; but  the  municipal  law  can  not  determine  whether  movable  things 
like  animals  are,  while  they  are  in  th&  high  seas,  the  property  of  one 
nation  as  against  all  others.  If,  indeed,  it  is  determined  that  such  an- 
imals have  a  aitns  upon  the  land,  notwithstanding  their  visits  to,  and 
migration  in  the  sea,  it  may  then  be  left  to  the  power  which  has  dominion 
over  such  land  to  determine  whether  such  animals  are  property;  but 
the  question  whether  they  have  this  situs  must  be  resolved  by  interna- 
tional law. 

The  position  taken  on  the  part  of  Great  Britain  is,  not  that  the  seals 
belong  to  her,  but  that  they  do  not  belong  to  any  nation  or  to  any  men; 
that  they  are  res  communes,  or  res  nullins;  in  other  words,  that  they  are 
not  the  suhject  of  property,  and  are  consequently  open  to  pursuit  and 
capture  on  the  high  seas  by  tlie  citizens  of  any  nation.  This  position 
is  based  upon  the  assertion  that  they  belong  to  the  class  of  wild  ani- 
mals, animals /errt!  natvrw,  and  that  these  sire  not  the  subject  of  owner- 
ship. On  the  other  hand,  it  is  insisted  on  the  part  of  the  United  States 
that  the  terms  ?c«7d  and  tame,ferce  and  (lomitre,  waifMra!,  are  not  suffl- 
oiently  precise  for  a  legal  classification  of  animals  in  respect  to  the 
question  of  property;  that  it  is  open  to  doul)t,in  many  cases,  whether  an 
animal  should  be  properly  designated  as  wild  or  tame,  and  that  the  as- 
signment of  an  animal  to  the  one  class  rather  than  to  the  other  is  by  no 
means  decisive  of  the  question  whether  it  is  to  be  regarded  as  prop- 
erty. In  the  view  of  the  United  States,  while  the  words  wild  and 
tame  describe  sufficiently  for  the  purposes  of  common  speech  the  nature 
and  habits  of  animals,  and  indicate  generally  whether  they  are  or 


PROPERTY   IN   THE   ALASKAN   SEAL   HERD. 


48 


are  not  the  subjecta  of  property,  yet  there  are  many  unimala  whi<!h 
lie  near  to  the  boundary  imperfeetly  drawn  by  these  terms,  and  in 
respect  to  which  the  question  of  property  can  be  dcterniined  only 
by  a  closer  inquiry  into  their  nature  and  habits,  and  one  more 
particularly  guided  by  the  considerations  upon  which  the  institution 
of  projwrty  stands.  If  the  question  were  asked  why  a  tame  or  domestic 
animal  should  be  property  and  a  wild  one  not,  these  terms  would  be 
found  to  supply  no  reasons.  The  answer  would  be  because  tame  ani- 
mals exhibit  certain  qualities,  and  wild  ones  other  and  different  qual- 
ities; thus  showing  that  the  question  of  property  depends  upon  the 
characteristics  of  the  animal.  This  view  seems  to  be  correct  upon  its 
mere  statement,  and  it  will  be  found  to  be  the  one  adopted  and  acted 
upon  by  the  writers  of  recognized  authority  upon  the  subject  of 
property.  It  would  be  sufficient  for  the  present  purpose  to  refer  to  the 
language  of  Chancellor  Kent  upon  thic  jtoint.  No  dissent  from  it  will 
anywhere  be  found.    He  says: 

Animals  f&ros  nofnro',  so  long  as  they  are  reclaimed  by  the  art  and 
power  of  man,  are  aiso  the  subject  of  a  qualified  property;  but  when 
they  are  abandoned,  or  escape,  and  return  to  their  natural  liberty  and 
ferocity,  without  the  animus  revertendi,  the  property  in  them  ceases. 
While  this  qualified  i)roperty  (continues,  it  is  as  much  under  the  protec- 
tion of  law  as  any  other  property,  and  every  invasion  of  it  is  redressed 
in  the  same  manner.  The  difficulty  of  ascertaining  with  pi-ecision  the 
application  of  the  law  arises  from  the  want  of  some  certain  determinate 
standard  or  rule  by  which  to  determine  when  an  animal  is  ferw,  vel 
domitce  naturae.  If  an  animal  belongs  to  the  class  of  tame  animals,  as, 
for  instance,  to  ^l»e  clsiss  of  horses,  sheep,  or  cattle,  lie  is  then  a  subject 
clearly  of  abs'  :•:•:  i)roperty;  but  if  he  belongs  to  the  class  of  animals, 
which  are  wild  oy  uature.  and  owe  all  their  tem])()rary  docility  to  the 
discipline  of  man,  such  as  deer,  fish,  and  several  kinds  of  i'owl,  then 
tlie  animal  is  a  subject  of  qualified  property,  and  which  eontimies  so 
long  only  as  the  tameneas  and  dominion  remain.  It  is  a  theory  of  some 
naturalists  that  all  animals  were  originally  wild,  and  that  snch  as  are 
domestic  owe  all  their  docility  and  all  their  degeneracy  to  the  liand  of 
man.  This  seems  to  have  been  the  opinion  of  Count  Buftbn,  and  he 
says  that  the  dog,  the  sheep,  and  the  camel  have  degenerated  from  the 
strength,  spirit,  and  beauty  of  their  natural  state,  and  that  one  principal 
cause  of  their  degeneracy  wa'S  the  pernicious  influence  of  Iniinan  jiower. 
Grotius,  on  the  other  hand,  says  that  savage  animals  owe  all  their  un- 
tamed ferocity  not  to  their  own  natures,  but  to  the  violence  of  man ; 
but  the  common  law  has  wisely  avoid'sd  all  ])erplexing  <iiiestions  and 
refinements  of  this  kind,  and  has  adopted  the  test  laid  <lowii  by  Puflen- 
dorf,*  by  I'eferring  the  (piestion  whetlier  the  animal  be  wild  or  tame  to 
our  knowledge  of  his  habits  derived  from  fact  and  experience.* 

To  this  citation  we  may  add  the  authority,  which  will  not  be  disputed 
in  this  controversy,  of  two  decisions  of  the  court  of  common  pleas  in 


I 


•  Law  of  Nature  and  Nations,  Lib.  4,  Chap.  6,  sec.  5. 


«  Kent's  Com.,  voL  2,  p.  348. 


44 


ARGUMENT   OB'    TUE    UNITED   STATES. 


Great  Britain.  In  tlui  case  of  Davies  v».  Powell  (Willes,  46)  the  quea 
tion  was  whether  deer  kept  iu  an  inclosiire  were  diatrainable  for  rent. 
The  court  took  notice  of  the  nature  and  habits  of  these  animals  as 
afl'cctod  by  the  care  and  hulvstry  of  man  and  the  uses  which  they  were 
made  to  Huhxervc;  and  it  observed  that,  while  they  were  formerly  kept 
principally  for  pleasure  and  not  for  i)roflt,  the  practice  had  arisen  of 
caring  for  them  and  rearing  and  selling  them,  and,  in  view  of  these 
facts,  declared  that  they  had  become  "  as  much  a  sort  of  husbandry  as 
horses,  cows,  sheep,  or  any  other  cattle." 

And,  more  recently,  the  question  was  made  in  the  case  of  Morgan  v. 
The  Earl  of  Abergavenny  (8  O.  B.,  768),  whether  deer  thus  kept 
passed  upon  the  death  of  3  owner  to  the  heir  or  to  the  executor;  that 
is  to  say,  whether  they  ^  monal  property  or  chattels  real.    Evidence 

was  received  upon  the  trial  showing  the  nature  and  habits  of  the  ani- 
mals; that  they  were  cared  for  and  fed  and  selections  made  from  them  for 
slaughter;  and  upon  this  evidence  it  was  left  to  the  jury  to  say  whether 
they  v/cre i;('rsoH«?  property.  The  jury  found  that  they  were;  and  the 
court  upon  a  review  of  the  case  approved  the  verdict,  holding  that  the 
question  was  justly  made  to  depend  upon  the  facts  which  had  been 
given  in  evidence. 

Inasmuch  as  the  present  controversy  upon  this  point  is  one  between 
nations,  it  can  not  be  determined  by  a  reference  to  the  municii)al  law  of 
either,  or  by  the  nuinicipal  law  of  any  nation.  The  rule  of  decision 
must  be  ^bund  in  international  law;  and,  as  has  already  been  shown,  if 
there  is  no  actua.  practice  or  usage  of  nations  directly  in  point,  as  there 
is  not,  recourse  m.ist  be  had  to  the  principles  upon  which  international 
law  is  founded — tliat  is  to  say,  to  the  law  of  nature.  But  the  question 
whether  a  particular  thing  is  the  subject  of  property,  as  between  nations- 
is  substantially  ili"  ':itme  as  the  question  whether  the  same  thing  is 
property  as  between  individuals  in  a  particular  nation.  Now,  it  so 
happens  that  this  latter  question  has  been  determined,  whenever  it 
has  arisen,  not  by  any  exercise  of  legislative  power,  but  by  an  adoption 
of  the  rule  of  the  law  of  nature.  And  the  municipal  jurisprudence  of 
all  nations,  proceeding  upon  the  law  of  nature,  is  everj'where  in  sub- 
stantial accord  upon  the  question  what  things  are  the  subject  of  prop- 
erty. That  jui'isprudence,  therefore,  so  far  as  it  is  consentaneous,  may 
be  invoked  in  this  controversy,  as  directly  evidencing  the  law  of  na- 
ture, and,  therefore,  of  nations. 

Proceeding  to  the  examination  of  the  doctrines  of  this  municipal 


jur 
cip 
th( 
dis 
coi 
ex 


PROPERTY    IN    THE    ALASKAN    SEAL    HERD. 


45 


jurisprudence,  it  appears,  immediately,  that  there  is  no  rnle  or  prin- 
ciple to  the  effect  that  no  wild  animals  are  tlie  sulyect  of  property.  On 
the  contrary  we  find  that  from  an  early  iieriod  in  the  Koman  law  a 
distinct  consideration  has  been  given  to  the  question,  what  animals, 
commonly  designated  as  wild,  are  the  subjectsof  property,  and  to  what 
extent.  And  the  doctrine  established  by  that  law,  and  adopted,  it  is 
believed,  wherever  that  law  has  been  received  as  the  basis  of  municipal 
iirisprudence  waa  also  carried  into  the  jurisprudence  of  England  at 
the  first  stage  of  its  development,  and  has  ever  since  been  received 
and  acted  upon  by  all  English-speaking  nations.  It  is  well  expressed 
in  ,lie  Commentaries  of  Blackstone:* 

II.  Other  animals  that  are  not  of  a  tame  and  domestic  nature  are 
either  not  the  objects  of  property  at  all  or  else  fall  under  our  other 
division,  namely,  that  of  qualified,  limited,  or  special  property,  which  is 
such  as  is  not  in  its  nature  permanent,  but  may  sometimes  subsist  and 
at  other  times  not  subsist.  In  discussing  which  subject,  I  shall,  in  the 
first  place,  show  how  this  species  of  property  may  subsist  in  such  ani- 
mals as  aveferce  naturw,  or  of  a  wild  nature,  and  then  how  it  may  sub- 
sist in  any  other  things  when  under  particular  circumstances. 

First,  thin,  a  man  may  be  invested  with  a  qualified,  but  not  an 
absolute  property  in  all  creatures  that  uTe/ercenaturce,  either  ^Jer  indus- 
triam,  propter  impotentiam,  or  propter  privilcpium. 

1.  A  qualified  property  may  subsist  in  mnintiis  ferae  naticree,  per  indus 
triam  hominis,  by  a  man's  reclaiming  and  making  them  tame  by  art,  indus- 
try, and  education,  or  by  so  confining  them  within  his  own  immediate 
power  that  they  can  not  escape  and  use  their  natural  liberty.  And  un- 
der this  head  some  writers  have  ranked  all  the  former  species  of  ani- 
mals we  have  mentioned,  apprehending  none  to  be  originally  and  nat- 
urally tame,  but  only  made  so  by  art  and  custom,  as  horses,  swine,  and 
other  cattle,  which,  if  originally  left  to  tliemselves,  would  have  chosen 
to  rove  up  and  down,  seeking  their  food  at  large,  and  are  only  made  do- 
mestic by  use  and  familial  ity,  and  are,  therefore,  say  they,  called  man- 
sueta,  quasi  manui  assueta.  But  however  well  this  notion  may  be 
founded,  abstractly  considered,  our  law  aj)prehends  the  most  obvious 
distinction  to  be  between  such  animals  as  we  generally  see  tame,  and 
are  therefore  seldom,  if  ever,  found  wandering  at  large,  wliicli  it  calls 
domitwnaturce,  and  such  creatures  as  are  usually  found  at  liberty,  which 
are  therefore  supposed  to  be  more  emphatically /er<c  naturw,  though  it 
may  happen  that  the  latter  shall  be  sometimes  tamed  and  confined  by 
the  art  and  industry  of  man — such  as  are  deer  in  a  park,  hares  or 
rabbits  in  an  inclosed  warren,  doves  in  a  dove  house,  pliensants 
or  partridges  in  a  mew,  hawks  that  are  fed  and  comniauded  by 
their  owner,  and  fish  in  a  private  pond  or  in  trunks.  Tliese  are  no 
longer  the  property  of  a  man  than  while  they  continue  in  his  keeping 
or  actual  possession ;  but  if  at  any  time  they  regain  their  natural  liberty 
his  pi'operty  instantly  ceases,  unless  they  have  animum  revertendi,  which 
is  only  to  be  known  by  their  usual  custom  of  returning.  A  maxim 
whieh  is  borrowed  from  the  civil  law,  ^^  revertendi  animum  videntur  desi- 
nere  habere  tunc,  cum  revertendi  consuetudinem  deseruennt.'''    The  law, 

'  Book  II,  p.  391. 


46 


ARGUMENT   OP   THE   UNITED   STATES. 


I  > 
1  i 


fcberefore,  extends  this  possession  furtber  than  the  mere  ma,nnal 
occupation;  tor  my  tame  hawk,  that  is  pursuing  his  quarry  in  my 
presence,  though  he  is  at  liberty  to  go  where  he  pleases,  is  never- 
theless my  property,  for  he  hath  anmwn  reverteudi.  So  are  my  pi- 
geons that  are  flying  at  a.  distance  from  tlieir  home  (especially  of 
the  carrier  kindi,  and  likewise  the  deer  that  is  chased  out  of  my 
park  or  forest,  and  is  instantly  pursued  by  the  keeper  or  forester; 
all  which  remain  still  in  my  possession,  and  I  still  preserve  my 
qualified  property  in  them.  But  if  they  stray  without  my  knowl- 
edge, and  do  not  return  in  the  usual  manner,  it  is  then  lawful  for  any 
strtiiiger  to  take  them.  But  if  a  deer,  or  any  wild  animal  reclaimed, 
hath  a  collar  or  other  mark  put  upon  him,  and  goes  and  returns  at  his 
pleasure,  or  if  a  wild  swan  is  taken  and  marked  and  turned  loose  in  the 
river,  the  owner's  property  in  him  still  continues,  and  it  is  not  lawful 
for  anyone  else  to  take  him;  but  otherwise  if  the  deer  has  been  long 
absent  without  returning,  or  the  swan  leaves  the  neighborhood.  Bees 
also  are/e>Yt'  naturce;  but,  when  hived  and  reclaimed,  a  man  may  have 
a  qualified  property  in  them,  by  the  law  of  nature,  as  well  as  by  the  civil 
law.  And  to  the  same  purpose,  not  to  say  in  the  same  words  with  the 
civil  law,  si)eaks  Bracton;  occupation,  that  is,  hiving  or  including 
them,  gives  the  property  in  bees;  for,  though  a  swarm  ligiits  upon  my 
tree,  I  have  no  more  property  in  them  till  I  have  hived  tliem  than  I 
have  in  the  birds  which  make  their  nests  thereon;  and.  therefore,  if 
another  hives  them,  he  shall  be  their  proprietor;  but  a  swarm,  which 
fly  from  and  out  of  my  hive,  ate  mine  so  long  as  I  can  keep  them  in 
sight  and  have  power  to  pursue  them,  and  in  these  circumstances  no 
one  else  is  entitled  to  take  them.  But  it  hath  b»'en  also  said  that  with 
us  the  only  ownership  in  bees  is  raiione  soli,  and  the  cnarter  of  the 
forest,  which  allows  every  freeman  to  be  entitled  to  the  honey  found 
within  his  own  woods,  aflbrds  great  countenance  to  this  twctrine,  that 
a  (lualified  property  nay  be  had  in  bees,  in  consideration  of  the  prop- 
erty of  the  soil  whereon  they  are  found. 

In  all  these  creatures,  reclaimed  from  the  wildness  of  their  nature, 
the  property  is  not  absolute,  but  defeasible:  a  propei'ty  that  maybe 
destroyed  if  they  resume  their  .ancient  Nvildness,  and  are  found  at  large. 
For  if  the  pheasants  escape  from  the  mew,  or  the  fishes  from  the  trunk, 
and  are  seen  wandering  -t  large  in  their. proper  element,  they  become 
fercB  naturce  asain,  and  are  free  and  open  to  the  first  occupant  that  has 
ability  to  seize  them.  But  wldle  they  thus  continue  my  qualified  or 
defeasible  property,  they  are  as  much  under  the  i)roteft;Jon  of  the  law 
as  if  they  were  absolutely  and  indefeasibly  mine;  and  an  action  will  lie 
against  any  man  that  detains  them  from  me  or  unlawfully  destroys  them. 
It  is  also  as  much  felony  by  (jommon  law  to  steal  sucli  of  them  as  are 
fit  for  food  as  it  is  to  steal  tame  animals;  but  not  so  if  they  are  only 
kept  for  pleasure,  curiosity,  or  whim;  as  dogs, bears, cats,  a])eB.  parrots, 
and  singing  birds;  because  their  value  is  not  intrinsic,  but  depending 
only  on  the  caprice  of  the  owner :  though  it  is  su(^h  an  invasion  of  prop- 
erty as  may  amount  to  a  civil  injuiy,  and  be  redressed  by  a  <ivil  action. 
Yet  to  steal  a  reclaimeil  hawk  is  felony  both  by  common  law  and  stat- 
ute; which  seems  to  be  a  relic  of  the  tyranny  of  our  ancient  soortsmen. 
And,  among  our  elder  ancestors,  the  ancient  Britons,  anotlier  species 
of  recdaimed  animals,  viz.,  cats,  were  looked  upon  as  ereatureH  of  in- 
trinsic value;  ami  the  killing  or  stealing  om^  was  a  grievous  crime, 
and  subjected  the  oflender  to  a  fine;  especially  if  it  l)elongea  to  the 
King's  hous(\hold,  nnd  was  the  c'«*to,v  horrei  rc(>ii,  for  which  tliere  was  a 
very  peculiar  forfeiture.  And  thus  m"ch  of  qualified  property  in  wild 
animals,  reclaimed  j>t;r  industriam. 


li 
b 
a 

n 


k- 


PROPERTY    IN   TKE    AI^ASKAN    SEAL    HERD. 


47 


From  the  geiiersil  doctrine  rtms  declared  no  dissent  will,  it  is  be- 
lieved, be  anywhere  found,  it  tia«  been  reafflrmod  in  many  instances 
by  the  conrt.s  both  of  Great  Britain  and  tlie  United  States.  The  special 
attention  of  the  Tribunal  should  be  given  to  the  utterances  upon  this 
question  both  by  judicial  tribunals  and  by  jurists  of  estal)li.shed 
antliority,  Riid  a  somewhat  copious  collection  of  them  will  be  found  in 
Appendix. 

It  will  be  observed  that  the  essential  facts  whitli,  according  to  these 
doctrines,  render  animals  commonly  designated  as  wild,  the  subjects  of 
property  not  only  while  in  the  actual  custody  of  their  masters  but  also 
when  temporarily  absent  therefrom,  are  tli.^i,  the  care  and  industry  of 
man  acting  upon  a  natural  disposition  of  the  ■Animals  to  return  to  a  place 
of  wonted  resort,  secures  their  voluntary  and  habitual  return  to  his 
custody  and  power,  so  as  to  enable  liini  to  deal  with  them  in  a  similar 
manner,  and  to  obtain  from  them  simitar  hcnefits,  as  in  the  case  of 
domestic  animals.  They  are  tlius  for  all  the  purjjoses  of  property  assim- 
ilated to  domestic  animals.  It  is  the  nature  and  hahits  of  the  animal, 
which  enable  man,  by  the  practice  of  art,  care,  »'?u?  industry,  to  bring 
about  these  useful  results  that  constitute  the  foundation  upon  which 
the  law  makes  its  award  of  property,  {ind  ext  Mids  to  tliis  producjt  of 
human  industry  the  protection  of  ownership.  This  species  of  property 
is  well  described  as  property  per  industriam. 

The  Alaskan  fur-seals  are  a  typical  instance  for  the  application  of 
this  doctrine.  They  are  by  the  imperious  and  unchangeable  instincts 
of  "^Iwir  nature  impelled  to  return  from  their  wanderings  to  the 
snvic place;  they  are  defenseless  against  man,  and  in  returning  to  the 
!-ame  i)laco  voluntarily  subject  themselves  to  his  power,  and  enable  him 
to  treat  them  in  the  same  way  and  to  obtain  from  them  the  same  bene- 
lits  as  may  be  had  in  thecase  of  domestic  animals.  They  thus  become  the 
subjects  of  ordinary  husbandry  as  much  as  sheep  or  any  other  cattle. 
All  that  is  needed  to  secure  this  return,  is  the  exercise  of  care  and 
industry  on  the  part  of  the  hunum  owner  of  the  place  of  resort.  He 
must  abstain  +Vom  killing  or  repelling  them  when  they  seek  to  return 
to  it,  and  must  invite  and  cherish  such  return.  He  must  defend  them 
against  all  enemies  by  land  or  sea.  And  in  making  his  selections  for 
slaughter,  he  must  disturb  them  as  little  as  possible  and  take  males 
only.  All  these  conditions  are  perfectly  supplied  by  the  United  States, 
and  their  title  is  thus  fully  substantiated. 

What  ground  of  difference  in  respect  to  the  point  in  question  can 


'^ 


48 


ARGUMENT   OF   THE    UNITED    STATES. 


be  suggested  between  these  seals  and  the  other  animals,  such  as 
deer,  bees,  wild  geese,  and  wild  swans,  which  appear  by  the  authori- 
ities  referred  to  to  be  universally  regarded  as  property  so  long  as  they 
retain  the  animum  revertendi  f  Will  it  be  said  that  this  animus  is  cre- 
ated by  man  in  the  case  of  those  animals,  and  in  the  seals  is  a  natural 
instinct?  If  this  were  true  it  would  be  unimportant.  The  essential 
thin  9;  is  that  the  art  and  industry  of  man  should  bring  about  the  useful 
result;  and  to  this  end  human  art,  care  and  industry  are  as  necessary  and 
as  effective  in  the  one  case  as  In  the  others.  If  man  did  not  choose  to 
practice  this  care  and  industry  in  respect  to  the  seals,  if  he  exhibited 
no  husbandry,  but  treated  them  a*  mid  animals,  and  attacked  and  killed 
them  as  they  sought  the  land,  they  would  be  vlriven  away  to 
other  haunts*  or  be  speedily  exterminated.  But  it  is  not  true  that 
the  disposition  to  return  is  created  by  man.  The  habitual  return 
of  the  other  animals  mentioned  is  due  to  their  natural  instincts  just 
as  much  as  that  of  the  seals  is  to  theirs.  Many  races  of  animals  have 
what  may  be  called  homes.  It  is  natural  instinct  which  prompts  them 
to  return  to  the  spot  where  they  rear  their  young  or  can  find  their  food 
or  a  secure  place  of  repose.  What  man  does  in  any  of  these  instances, 
and  as  much  in  one  as  in  another,  is,  to  act  upon  this  instinct  and  make 
it  available  ro  secure  the  return.  If  the  seals  will  return  to  the  same 
place  and  voluntarily  put  themselves  in  the  power  of  man  with  less 
efibrt  on  his  part  than  in  the  case  of  the  other  animals,  it  shows  only 
that  they  are  by  naturo  less  wild  and  less  inclined  to  fly  from  the 
presence  of  man.  In  the  case  of  the  bees,  for  instance,  it  is  plain  that 
their  nature  is  no  more  changed  by  man  than  that  of  the  seals.  They 
are  as  wild  v?hen  dwelling  in  an  artificial  hive  as  when  they  are  in  the 
woods;  nor  does  man  feed  them;  they  gain  their  food  from  flowers 
which,  for  the  most  part,  belong  to  ijersons  other  than  their  mastiCrs. 
Will  it  be  said  that  the  wanderings  of  the  seals  are  very  distant!  Of 
what  consequence  is  this  so  long  as  the  return  is  certain!  Bees 
wander  very  long  distances.  Will  it  be  insisted  that  it  makes  any 
difference  on  the  question  of  property  whether  a  cow  seal  goes  five,  or 
a  hundred  miles  in  the  sea  to  obtain  food  to  enable  her  to  nourish  her 
offspring  on  the  shore!  Probably  the  long  duration  of  migration  to  the 
south  in  the  winter  will  be  urged  as  a  striking  distinction  between  the 
case  of  the  seals  and  the  other  instances;  but  what  difference  can  this 
make  if  the  animus  revertendi  remains,  as  it  unquestionably  does,  and 
the  same  beueflicial  results  are  secured! 


T 


PROPERTY    IN   THE   ALASKAN    SEAL   HERD. 


49 


I 


The  difficulty  of  identification  may  be  suggested,  but  it  does  not  ex- 
ist. There  is  no  conimiugling  with  the  Russian  herd.  Every  fur-seal 
on  the  Northwest  coast  belongs  indisputably  to  the  Alaskan  herd.  But 
if  there  were  any  such  supposed  difficulty,  it  would  matter  nothing.  If 
a  man,  without  authority,  kills  cattle  wandering  without  guard  over 
the  boundless  plains  of  the  interior  of  the  United  States,  he  is  a  plain 
trespasser.  It  might  be  difficult  for  any  particular  owner  to  make  out 
a  case  of  damages  against  him,  but  he  would  be  none  the  less  a  tres- 
passer for  that.  If  a  man  kills  a  reclaimed  swan  or  goose  innocently, 
and  believing  it  to  be  v.'ild,  he  is,  indeeu,  excusable,  and  if  there  were 
different  herds  of  fur-seals,  some  of  them  property  and  others  not,  it 
might  be  difficult  to  show  that  one  who  killed  seals  at  sea  had  notice 
that  they  were  property;  but  there  are  no  herds  of  fur-seals  in  the 
North  Pacific  which  are  not  in  the  same  condition  with  those  of  Alaska. 

It  does  not,  therefore,  appear  that  the  differences  observable  between 
the  fur-seals  and  those  other  animals  commonly  designated  as  wild, 
"  hich  are  held  by  the  municipal  law  of  all  nations  to  be  the  subject  ot 

viHTsliip,  are  material,  and  the  conclusion  is  fully  justified  that  if  the 
hitter  are  prcperty,  the  former  iimst  also  be  property. 

But  then-  IS  another  and  broader  line  of  inquiry,  by  following  which 
all  doubt  upon  his  point  luay  be  removed.  What  are  the  grounds  and 
reasons  upon  which  the  institution  of  property  stands'?  Why  is  it 
that  society  chooses  to  iward,  through  the  ijistrumentality  of  the  law, 
a  right  of  property  ir-  anythin,:?'?  Why  is  it  that  it  makes  any  dis- 
tinction in  this  respect  between  wild  and  tame  animals;  and  why  is  it 
that,  as  to  animals  commonl;  designated  as  wild,  it  pronounces  some 
to  be  the  subjects  of  pi'M  ty  and  denies  that  quality  to  others?  It 
can  not  be  that  these  inij  xntant  but  diflfering  determinations  are  founded 
upon  arbitrary  reasons.  Nor  does  the  imputation  to  some  of  these  ani- 
mals of  what  is  termed  the  animus  revertendi,  or  the  fact  tbf"^  ♦^^hey 
have  a  habit  of  returning  which  evidences  that  intent,  of  themst '  .es, 
explain  anything.  They  would  both  be  wholly  unimportant  unless 
they  were  significant  of  some  weighty  social  and  economic  considerations 
arising  out  of  imperious  social  necessities.  If  we  knew  what  these 
reasons  were,  we  might  no  longer  entertain  even  a  doubt  upon  the 
question  whether  the  Alaskan  seals  are  the  subjects  of  property.  If  it 
should  appear  upon  inquiry  that  every  reason  upon  which  bees,  or  deer, 
or  pigeons,  or  wild  geese,  '-wA  swans  are  held  to  be  property  requires 

the  same  determination  in  respect  to  the  Alaskan  seals,  the  differences 
14749 4 


m 


50 


ARGUMENT  OF  THE  UNITED  STATES. 


1 


observable  between  these  various  species  of  animals  must  be  dismissed 
as  wholly  unimportant  and  the  conclusion  be  unhesitatingly  received 
that  the  fur-seals  are  the  subjects  of  ownership. 

The  attention  of  the  tribunal  is,  therefore,  invited  to  a  somewhat 
careful  inquiry  into  the  original  causes  of  the  institution  of  property 
and  the  principles  upon  which  it  stands;  and  the  counsel  for  the  United 
States  will  be  greatly  disappointed  if  the  result  of  the  investigation 
should  fail  to  satisfy  the  Tribunal  that  there  is  a  fundamental  principle 
underlying  that  institution  which  is  decisive  of  the  main  question  now 
under  discussion.  That  princiide  they  conceive  to  be  this,  that  when- 
ever any  useful  loild  animals  so  far  submit  themselves  to  the  control  of 
jarticular  men  as  to  enable  them  exclusively  to  cultivate  such  animals  and 
obtain  the  annual  increase  for  the  supply  of  human  wants,  and  at  the  same 
time  to  preserve  the  stock,  they  have  a  property  in  them,  or,  in  other  words, 
whatever  may  be  justly  regarded  as  the  product  of  human  art,  industry, 
and  self  denial  must  be  assigned  to  those  who  make  these  exertions  as 
their  merited  reward. 

The  inquiry  thus  challenged  is  in  no  sense  one  of  abstract  specula- 
tion, nor  is  it  a  novel  one.  It  proceeds  upon  the  firm  basis  of  the  facts 
of  man's  nature,  the  environment  in  which  he  is  placed,  and  the  social 
necessities  which  deterniine  his  action ;  and  the  pathway  is  illumined 
by  the  lights  thrown  upon  it  by  a  long  line  of  recognized  authorities. 
The  writers  upon  the  law  of  Nature  and  Nations,  beginning  with  Gro- 
tius,^  h.ave  justly  conceived  that  no  system  of  practical  ethics  would  be 
coiniilete  whic'li  did  not  fully  treat  of  the  institution  of  property,  not 
only  in  respect  to  nations,  but  also  in  respcitt  to  private  persons.  Rec- 
ognizing the  fact  that  a  nation  could  not  defend  its  possessions  against 
other  nations  by  an  appeal  to  any  municipal  law,  they  hrive  sought  to 
find  gi'ounds  for  the  defense  of  those  possessions  in  the  law  of  nature 
which  must  be  everywhere  acknowledged.  It  is  upon  che  bror.d,  general 
principles  agreed  to  by  these  authorities  that  we  shall  endeavor  to 
establish  the  proposition  abce  stated. 

It  is  easier  to  feel  than  it  is  to  precisely  define  the  meaning  of  the 
word  property;  but  as  the  feeling  is  substantially  tlie  same  in  all  minds 
there  is  the  less  need  of  any  attempt  at  exact  definition.    It  is  cou;- 


'  Grotins,  de  Jure  Bi'lli  ao  Pacis,  Book  ii,  chap,  n;  Puircndoif,  Law  of  Nature 
and  Nations,  Book  iv,  clinp.  v.  So«  also  BliRkstone's  ck'stiiit  chupter  on  "Prop- 
erty in  General,"  (Commentaries,  Book  2,  pp.  1,  et  acq.)',  and  Locko  ou  Civil  Uovern- 
ment,  Chap.  y. 


PROPERTY   IN   THE    ALASKAN   SEAL   HERD. 


51 


ti 


monly  said  to  be  the  right  to  the  exclusive  possession,  use,  and  disposi- 
tion of  the  thing  which  is  the  subject  of  it;  but  this  defines  rather  the 
right  upon  which  property  rests,  than  property  itself.  The  somewhat 
abstract  definition  of  Savigny  more  precisely  states  what  property 
really  is.  "  Property,"  says  he,  "  according  to  its  true  nature,  is  a 
widening  of  individual  power."*  It  is,  as  far  as  tangible  things  are 
concerned,  an  extension  of  the  individual  to  some  part  of  the  material 
world,  so  that  it  is  affected  by  his  personality.* 

But  whence  comes  the  right  of  the  individual  to  thus  extend  his 
power  over  the  natural  world,  and  what  are  its  conditions  and  limita- 
tions! In  thus  speaking  of  rights,  moral  rights  alone  are  intended, 
for  the  law  knows  of  no  other,  if,  indeed,  any  other  exist.  There  are 
no  natural  indefeasible  rights  which  stand  for  their  own  reason.  II 
rights  exist,  it  is  not  for  themselves  alone,  but  because  they  subserve 
the  happiness  of  mankind  and  the  purposes  for  which  the  human  r?ce 
was  placed  upon  the  earth.  Even  the  right  to  life,  however  clear  in 
general,  is  not  natural  and  indefeasible.  It  is  held  subject  to  the  needs 
of  mankind,  and  in  a  great  number  of  cases  may  be  justly  taken  by 
society.  In  order  to  ascertain  the  source  and  foundation  of  the  right 
of  property,  we  must  look,  as  all  moralists  and  jurists  look,  to  the 
nature  of  man  and  the  environment  in  which  he  is  placed.  We  find 
that  the  desire  of  exclusive  possession  is  one  of  the  original  and  prin- 
cipal facts  of  man's  nature  which  will  and  must  be  gratified,  even  though 
force  be  employed  to  vindicate  the  possession.  We  know,  also,  that 
man  is  a  social  animal  and  must  live  in  society,  and  that  there  can  not 
be  any  society  without  order  and  peace.  Even  in  savage  life  it  is  a 
necessity  that  the  hunter  should  .h^vo.  xHe  ewlusiye  ownership  of  the 
beast  he  has  slain  for  food  and  of  the,  weapon  he  has  made  for  the  chase. 
Otherwise  life  itself  could  not  be  maintained..  His  yude  society,  even, 
is  not  possible  unlejjo  .it  ffj.nislies  him  wjth  aoroe  guaranty  i^iat  these 
few  possessions  be  secured  to  him.  Otherwise  he  is  at  war  with  his 
species,  and  society  is  gone.  The  existence  of  property,  to  at  least  this 
extent,  is  coeval  with  the  existence  of  man.    It  stands  upon  the  imperi- 


'  Jurid.    Relations  (Lond.,  1834,  Ratteguin'a  TranH.),  p.  178. 

'  Locke  expresses  tlie  same  idea :  "  The  fruit  or  venison  which  nourishes  the  wild 
Indian  *  »  »  niust  be  his,  and  so  his,  i.  e.,  a  part  of  him,  that  another  can  no 
longer  have  any  right  to  it,"  etc.     (Civil  Government,  Ch.  v,  $  25.) 

"In  malting  the  object  ujy  own  I  stamped  it  with  the  mark  of  ray  own  person; 
whoever  attacks  it  attacks  mo;  the  blow  struck  it  strikes  me,  for  I  am  present  in  it. 
Property  is  but  the  periphery  of  my  person  extended  to  things."  Ihoring,  quoted 
by  George  B.  Newcomb,  Pol.  Science  Quarterly,  vol.  1,  p.  604. 


52 


ARGUMENT  OP  THE   UNITED   STATES. 


i 


ous  and  indispu^able  basis  of  necessity.  "  Necessity  begat  property."* 
Neither  history,  nor  tradition,  informs  us  of  any  people  who  have  in- 
habited the  earth  among  whom  the  right  of  property  to  at  least  this 
extent  was  not  recognized  and  enforced.  And  an  interesting  confirma- 
tion is  found  in  the  circumstance  that  the  rude  originals  of  the  admin- 
istration of  justice  are  everywhere  found  in  contrivances  designed  for 
.  punishment  of  theft. 

The  circumstance  that  in  the  early  advances  of  society  from  savage 
to  industrial  conditions  we  find  that  in  many  things,  especially  land  and 
the  products  of  land,  community  property  is  found  to  obtain  in  place  of 
individual  property,  does  not  impair  in  any  degree  the  force  of  the 
views  just  expressed.  The  institution  of  property  is  in  full  operation, 
whether  society  itself— the  artificial  person — asserts  ownership,  or  per- 
mits its  members  to  exercise  the  privilege.  Wherever  the  supreme 
necessities  of  society,  peace  and  order,  are  found  to  be  best  subserved 
by  ownership  in  the  one  form  rather  than  in  the  other,  the  form  most 
suitable  will  be  adopted.  Community  property  was  found  sufficient  for 
the  early  stages  of  society,  and  it  is  the  anticipation,  or  tho  dream,  of 
many  ingenious  minds  that  the  expedient  will  again,  in  the  further  ad- 
vance of  society,  be  found  necessary. 

.  But  the  desire  of  human  nature  for  exclusive  ownership  is  not  lim- 
ited to  the  weapons  and  product  of  the  chase,  as  in  savage  society,  or 
to  the  reward  of  a  proportional  share,  as  in  early  industrial  communi- 
ties. Man  wishes  for  more,  for  the  sake  of  the  comfort,  power,  consid- 
aration  and  influence  which  abundant  possessions  bring.  He  wishes  to 
better  his  condition,  and  this  is  possible  only  bj  increiise  of  posses- 
sions. And  the  improvement  of  socieiy,  it  has  been  found,  can  be 
effected,  or  best  ettected,  only  throaigh  the'i<n^rovemeut  of  its  individ- 
ual memberi!.  This  desire  of  Lxuividual  man  to  better  his  condition  is 
imperious,  and'  must  l)e  gifatified;  and  inasmudt  »s  the  gratification 
tends  to  general  happiness  and  improvement,  a  moral  basis  is  furnisUed 
for  an  extension  of  the  institution  of  individual  property.  As  the  first 
necessity  of  the  social  state,  peace  and  order,  require  that  ownership 
should  be  enforced  to  at  least  the  limited  extent  which  savage  con- 
ditions require,  so  the  second  necessity  of  society,  its  progress  jind 
advancement — that  is  to  say,  civilization — demands  that  individual 
eftbrt  should  be  encouraged  by  offering  as  its  reward  the  exclusive  own- 
ership of  everything  which  it  can  produce.    In  these  two  principal  ueces- 


>  Blackatone's  Com.,  Book  2,  p.  8. 


w^W— 111. 


l>feOPERTV   In   the   ALASKAN    SEAL   HERD. 


5d 


Bitiea  of  human  condition,  the  peace  of  society,  and  its  progress  and 
advancement  in  wealth  and  numbers,  both  founded  upon  the  strongest 
desires  of  man's  nature,  the  institution  of  property  has  its  foundation. 

There  are  several  features  of  this  institution  which  in  this  discussion 
should  be  well  understood  and  carried  in  mind;  and,  first,  the  extent 
of  its  operation.  Manifestly  this  must  be  coextensive  with  the  human 
desires  and  necessities  out  of  which  it  springs.  Wherever  there  is  an 
object  of  desire,  not  existing  in  suflQcient  quantity  to  fully  satisfy  the 
greed  of  all,  coniiict  for  possession  will  arise  and  consequent  danger  to 
peace.  Society  finds  its  best  security  for  order  in  extending  the  privi- 
lege of  ownership  to  everything  which  can  be  owned.  The  owner  may 
be  the  state  or  community,  as  under  early  and  rude  social  conditions; 
or  private  individuals,  as  civilization  advances;  but,  in  either  case, 
nothing  is  left  as  a  subject  for  strife.  The  grounds  and  reasons  which 
society,  after  the  introduction  of  individual  property,  may  allow  as  suffi- 
cient for  awarding  ownership  to  one  rather  than  to  another  are  various; 
but  they  all  dep3nd  upon  some  consideration  of  superior  merit  and 
desert.  That  one  .'nan  has  by  his  labor  and  skill  formed  a  weapon  or 
a  tool  is  instantly  recognized  as  a  sufficient  ground  to  support  his  title 
to  it.  And  if  he  simply  takes  possession  of  some  things  before  unap- 
propriated by  any  one,  or  finds  property  to  which  no  other  owner  asserts 
arclaira,  his  right,  though  less  impressive,  is  still  superior  to  that  of 
any  other.  We  therefore  easily  reach  the  conclusion  that  the  necessi- 
ties which  demand  the  institution  of  property  equally  demand  its  ex- 
tension over  every  object  of  desire  as  to  which  conflict  for  possession 
may  arise. 

But  it  is  not  only  the  necessity  of  peace  and  order  which  requires 
that  all-embracing  extent  of  the  institution  of  property.  It  is  alike 
demanded  by  that  high  moral  purpose  already  alluded  to  as  constitut- 
ing part  of  the  foundation  of  the  institution,  namely,  the  improvement 
of  society  and  of  the  individual  man.  j'^his,  as  has  already  been  seen, 
can  be  brought  about  only  by  the  cultivation  of  the  arts  of  industry  by 
which  nature  is  made  to  yield  a  more  abundant  provision  for  human 
wants.  Thtae  arts  will  not  be  practiced  unless  the  fruits  of  each  man's 
labor,  whether  it  be  the  product  0/  the  field,  of  the  workshop,  or  the 
increase  of  animals  which  are  the  subject  of  his  care,  are  assured  to 
him.  We  find,  therefore,  that  the  institution  of  property  is  so  imbed- 
ded in  the  nature  of  man,  that  its  existence  is  a  necessary  consequence 
of  forcee  iu  operation  wherever  man  is  found,  or  wheresoever  his  power 


54 


ARGUMENT   OP  THE   UNlTfit)    fetAtfiS. 


may  extend,  and  that  the  fundamental  formula  by  which  the  institution 
is  expressed  is  that  every  object  of  desire,  of  which  the  supply  is  limited, 
must  be  owned.  It  is  with  this  proposition  that  Blackstone  closes  his 
chapter  upon  "Property  in  General." 

"Again,  there  are  other  things  in  which  a  permanent  property  may 
subsist,  not  only  as  to  the  temporary  use,  but  also  the  solid  substance; 
and  which  yet  would  frequently  be  found  without  a  proprietor  had  not 
the  wisdom  of  the  law  provided  a  remedy  to  obviate  this  inconvenience. 
Such  are  forests  and  other  waste  grounds,  which  were  omitted  to  be 
appropriated  in  the  general  distribution  ot  lands.  Such  also  are 
wrecks,  estrays,  and  that  species  of  wild  animals  which  the  arbitrary 
constitutions  of  positive  law  have  distinguished  from  the  rest  by  the 
well  known  appellation  of  game.  With  regard  to  these  and  sonje 
others,  as  disturbances  and  quarrels  would  frequently  arise  among  in- 
dividuals, contending  about  the  acquisition  of  this  species  of  property 
by  first  occupancy,  the  law  has  therefoi'e  wisely  cut  up  the  root  of  dis- 
sension by  vesting  the  things  themselves  in  the  sovereign  of  the  State, 
or  else  in  his  representatives  appointed  and  authorized  by  him,  being 
usually  the  lords  of  manors.  And  thus  the  legislature  of  England  has 
universally  promoted  the  grand  ends  of  civil  society,  the  peace  and 
security  of  individuals,  by  steadily  pursuing  that  wise  and  orderly 
mojcim  of  assigning  to  everything  capable  of  ownership  a  legal  and  deter- 
minate owner."^ 


'  Sir  Henry  Maine,  after  tracing  with  hia  wonted  acutenesa  the  courae  of  the  de- 
veTopnient  of  the  conception  of  property,  alao  finds  that  it  finally  resnlta  in  the 
proposition  that  everything  must  be  owned. 

"  It  is  only  when  the  rights  of  property  gained  aaanction  from  long  practical  invio- 
lability, and  when  the  vast  majority  of  objects  of  enjoyment  have  been  subjected 
to  private  ownership,  that  mere  possession  is  allowed  to  invest  the  first  possessor 
with  dominion  over  commodities  in  which  no  prior  proprietorship  has  been  asserted. 
The  sentiment  in  which  this  doctrine  originated  is  absolutely  irreconcilable  with 
that  infrequency  and  uncertainty  of  proprietary  rights  which  distinguish  the  begin- 
ning of  civilization.  The  true  basis  seems  to  be  not  an  instinctive  bias  towards  the 
institution  of  property,  but  a  presumption,  arising  out  of  the  long  continuance  of  that 
institution,  that  everything  ought  to  have  an  owner.  "When  possession  is  taken  of  a '  rea 
nulUus,'  that  is,  of  an  object  which  is  not,  or  has  never,  been  reduced  to  dominion, 
the  possessor  is  permitted  to  become  proprietor  from  a  feeling  that  all  valuable  things 
are  naturally  subjects  as  an  exclusive  enjoyment,  and  that  in  the  given  case  there 
is  no  one  to  invest  with  the  rights  of  property  except  the  occupant.  The  occupant, 
in  short,  becomes  the  owner,  because  all  things  are  presumed  to  be  somebody's  pro- 
perty, and  because  no  one  can  be  pointed  out  as  having  a  better  right  than  he  to  the 
proprietorship  of  this  particular  thing."    (Ancient  Law,  Ch.  viii,  p.  249.) 

Lord  Chancellor  Chelmsford  made  the  proposition  that  every  thing  must  be  owned 
by  some  one,  the  ground  of  his  decision  in  the  House  of  Lords  of  the  case  of  Blades  v. 
Higgs.    (Law  Journal  Reports,  N.  S.  286,  288.) 

From  Commentaries  on  the  Constitutional  Law  of  England.  By  George  Bowyer, 
D.  C.  L.,  2d  ed.    London,  1846,  p.  427: 

"III.  The  third  primary  right  of  the  citizen  is  that  of  property,  which  consists  in 
the  free  use,  enjoyment,  and  disposal  of  all  that  is  his,  without  any  control  or  dimi- 
nution, save  by  the  law  of  the  land.  The  institution  of  property — that  is  to  say,  the 
appropriation  to  particular  persons  and  uses  of  things  which  were  given  by  God  to 
»I1  mankind — ^is  of  natural  law.  The  reason  of  this  is  not  difficult  to  discover,  for 
the  inoreaae  of  mankind  must  soon  have  rendered  community  of  goods  exceedingly 


m 


PROPERTY    IN   THE   ALASKAN   SEAL    HERD. 


55 


Nothing  wUioU  is  not  au  object  of  human  desire — that  is,  nothing 
which  has  not  a  rejogiiized  utility — can  be  the  subject  of  property,  for 
there  is  no  possibility  of  conflict  for  the  posse  ssion.  Property,  there 
fore,  is  not  predicable  of  noxious  reptiles,  insects,  or  weeds,  except  under 
special  circumstances,  where  they  may  be  kept  for  the  purposes  of 
science  or  amusement.  The  supply,  indeed,  may  be  limited;  but  the 
element  of  utility,  which  excites  the  conflicting  desires  which  property 
is  designed  to  reconcile  and  restrain,  is  absent.  Nor  is  property  pred- 
icable of  things  which,  tliough  in  the  highest  degree  useful,  exist  in 
inexhaustible  abundance  and  within  the  reach  of  all.  Neither  air  nor- 
light  nor  running  water  are  the  subjects  of  property.  The  supply  is 
unlimited,  and  where  there  is  nbundamo  to  satisfy  all  desires  there  can 
be  no  conflict. 

There  is  a  still  further  qualification  of  the  extent  to  which  the  insti- 
tution of  property  is  operative.  Manifestly,  in  order  that  a  thing  may 
be  owned,  it  must  be  susceptible  of  ownership,  that  is,  of  exclusive  ap- 
propriation to  the  power  of  some  individual.  There  are  things  of 
which  this  can  not  be  asserted.  Useful  wild  animals  are  the  familiar 
instance.  Although  objects  of  desire  and  limited  in  supply,  they  are 
not,  as  a  general  rule,  susceptible  of  exclusive  appropriation.  They 
are  not  subject,  otherwise  than  by  capture  and  confinement,  to  the  con- 
stant disposition  of  man  as  he  may  choose  to  dispose  of  them.  We 
can  hold  them  only  by  keeping  them  in  captivity,  and  this  we  can  do 
only  in  respect  to  an  insignificant  part.  What,  in  the  view  of  the  laio, 
eonstitiites  this  siisocptibility  of  exclusive  appropriation  is  an  interesting 
and  important  question,  which  will  be  hereafter  discussed  in  connection 
with  the  question  what  animals  are  properly  to  be  denominated  as  wild. 

The  importance  of  the  conclusion  reached  by  the  foregoing  reasoning 
should  be  marked  by  deliberate  restatement.  The  institution  of  prop- 
erty embraces  all  tangible  things  subject  only  to  these  three  excepting 
conditions: 

First.  They  must  have  that  utility  which  makes  them  objects  of 
human  desire. 

Second.    The  supply  must  be  limited. 

TMrd.    They  must  be  susceptible  of  exclusive  appropriation. 


inconyeniont  or  impossible  consistently  with  the  peace  of  society;  and,  indeed,  by 
far  the  greater  number  of  thiiij^s  can  not  be  made  fully  subservient  to  the  use  of 
mankind  in  the  most  beneficial  manner  unless  they  be  governed  by  the  liws  of  ex- 
clusive appropriation." 


66 


ARGUMENT  OF  THE  UNITED  STATES. 


This  conclusion  is  a  deduction  of  moral  right  drawn  fi-oni  the  facts  of 
man's  nature  and  the  environment  in  which  he  is  plac  ed ;  in  other  words, 
it  is  a  conclusion  of  the  law  of  nature;  but  this,  as  has  been  heretofore 
shown,  is  international  law,  except  so  far  as  the  latter  may  appear,  from 
the  actual  practice  and  usages  of  nations,  to  have  departed  from  it,  or, 
to  speak  more  properly,  not  to  have  risen  to  it. 

Turning  to  the  actual  practice  of  nations,  that  is,  to  the  observed  fact, 
we  find  that  it  is  in  precise  accordance  with  the  deductive  conclusion. 
No  tangible  thing  can  be  pointed  out,  which  exhibits  the  conditions 
above  stated,  which  is  not  by  the  jurisprudence  of  .all  civilized  nations 
pronounced  to  be  the  subject  of  property,  and  protected  as  such .  This 
seems  so  manifest  as  to  justify  a  confidence  that  the  assertion  will  not 
be  disputed. 

In  the  foregoing  reasoning  no  distinction  ha  s  been  observed  between 
ownership  by  private  individuals  under  municipal  law,  and  by  nations 
under  international  law.  There  is  no  distinction.  Nation  s  are  but  ag- 
gregates of  individual  men.  They  exhibit  the  same  ambitions,  are  sub- 
ject to  like  perils,  and  must  resort  for  safety  and  peace  to  similar  ex- 
pedients. Just  as  it  is  necessary  to  the  jieace,  order,  and  progress  of 
municipal  societies  that  everything  possessing  the  three  ch.aracteri sties 
above  enumerated  should  be  owned  by  some  one,  so  also  it  is  necessary 
to  the  peace,  order,  and  progress  of  the  larger  society  of  nations  that 
everything  belonging  to  the  same  class,  but  which  from  its  magnitude 
is  incapable  of  individual  ownership,  should  be  owned  by  some  nation. 
This  truth  is  well  illustrated  by  the  practice  of  nations  for  the  last  four 
centuries  in  acknowledging  as  valid  titles  to  vast  tracts  oi  the  earth's 
surface  upon  no  other  foundation  than  first  discovery.  Nearly 
the  whole  of  the  American  continents  was  parceled  out  among  Euro- 
pean nations  by  the  recognition  of  claims  based  upon  such  titles  alone.' 


'  The  practice  and  doctrine  of  European  nations  npon  thissnbjcct  are  clearly  sot 
forth  by  Mr.  Chief  Justice  Marsliail,  in  delivering  the  opinion  of  tl>  s  Supreme  Court 
of  the  United  States  in  Johnson  vs.  Mcintosh  (8  Wheat.,  543,  572.)  A  short  extract 
will  be  pertinent  here : 

"As  the  right  of  society  to  prescribe  those  rules  by  which  property  may  be  ac- 
quired and  preserved  is  not,  and  can  not  be,  drawn  into  question ;  as  the  title  to 
lands,  especially,  is,  and  must  be  admitted,  to  depend  entirely  on  the  law  of  the  na- 
tion in  which  they  lie,  it  will  be  necessary,  in  pursuing  this  inquiry,  to  examine,  not 
simply  those  principles  of  abstract  justice  which  the  Creator  of  all  things  has  im- 
pressed on  the  mind  of  his  creature,  man,  and  which  are  admitted  to  regulate  in  a 
great  degree  the  rights  of  civilized  nations,  whose  perfect  independence  has  been 
acknowledged,  but  those  iirinciples  also  which  our  own  Government  has  adopted  in 
the  particular  case,  and  given  as  the  rule  of  decision. 

"On  the  disooyery  of  this  immense  contineut,  the  great  nations  of  Europe  were 


R 


PROPERTY    IN   THE    ALASKAN   SEAL   HERD. 


57 


And,  for  the  moat  part,  tl»e  vast  territories  thus  acquired  were  not  even 
seen.  Tlie  maritime  (ioasts  only  were  explored,  and  title  U>  the  whole 
interior,  stretching  from  ocean  to  ocean,  or  at  least  to  tlie  sources  of 
the  rivers  emptying  upon  the  coasts  explored,  was  asseit^ul  upon  the 
basis  of  this  limited  discovery.  Some  limitations  were  placed  upon 
these  vast  claims  resulting  from  conflicts  in  the  allegations  of  priority; 
but,  for  the  most  part,  the  etfectiveness  of  first  discovery  in  giving  title 
to  great  areas  which  had  not  been  even  explored  was  recognized.  If 
the  mere  willing  by  tiie  first  discoverer  that  things  suscejjtible  of  ap- 
propriation should  be  his  property  was  held  sufUcientto  make  them  so, 
it  could  only  have  been  from  a  common  conviction  that  ownership  of 
every  part  of  the  earth's  surface  by  some  nation  was  so  essential  to  the 
general  peace  and  order,  that  it  was  expedient  to  recognize  the  slightest 
moral  foundation  as  sufficient  to  support  a  title.  The  principle  has 
been  extended  to  vast  territories  which  are  even  incapable  of  human 
occupation.  The  titles  of  Great  Britain  to  her  North  American  terri- 
tory extending  to  the  frozen  zone,  and  of  the  riiited  States  derived 
from  Bussia  to  the  whole  territory  of  Alaska  have  never  been  qiios- 
tioned. 

THE  FORM  OF  TEE    mSTITUTION— COMMUNITY  AND  PRIVATE  PROP- 
ERTY. 

But  although  the  existence  of  human  society  involves  and  necessi- 
tates the  institution  of  property,  it  does  not  determine  the  form  which 
that  institution  assumes.  The  necessity  that  all  things  susceptible  of 
ownership  should  bo  owned  is  one  thing;  but  who  the  owner  shall  be 


eager  to  appropriate  to  themselves  so  much  of  it  as  thoy  could  respectivoly  acquire. 
Its  vast  extent  afFordod  an  ample  field  to  the  ambition  and  enterprise  of  all ;  and  tlie 
character  and  religion  of  its  inliabitants  afforded  an  apology  for  considering  them  as 
a  people  over  whom  the  superior  genius  of  Europe  miffht  claim  an  ascendoucy.  The 
potentates  of  the  world  found  nodifflciity  in  eouvincing  themselves  that  they  made 
ample  compensation  to  the  inhabitants  of  the  now,  by  bestowing  upon  them  civili- 
zation and  Christianity,  in  exchange  for  unlinited  independence.  But,  as  they  were 
all  in  pursuit  of  nearly  the  same  object,  it  vras  necessary  in  order  to  avoid  conflict- 
ing settlements,  and  consequent  war  with  each  other,  to  estahlisli  a  principle  which 
all  should  acknowledge  as  the  law  by  which  the  right  of  acquisition,  which  they  all 
asserted,  shonld  be  regulated  as  between  themselves.  This  principle  was  that  dis- 
covery gave  title  to  the  governments  by  whose  subjects,  or  by  whoso  authority  it 
was  made,  against  all  other  European  governments,  which  title  might  be  consum- 
mated by  possession.  The  exclusion  of  all  other  Europeans  necessarily  gave  to  the 
nation  making  the  discovery  the  sole  right  of  acquiring  the  soil  from  the  natives 
an<l  establishing  settlements  upon  it.  It  was  a  right  with  which  no  Europeans 
•ould  interfere.  It  was  a  right  which  all  asserted  for  themselves,  and  to  the  asser- 
tion of  wbioh  by  others  all  assented." 


t 
I 

'•;'■■■' 


ili;  ' 


§ 


I 

f 


58 


ARGUMENT   OP   THE   UNITED   STATES. 


I 


\  ! 


is  another.  As  has  already  been  pointed  out,  the  absolute  necessities 
of  rude  society  may  be  satisfied  by  making  society  itself  the  universal 
owner;  which  is  the  condition  actually  presented  by  some  very  early 
communities;  but  individual  ownership  is  the  condition  found  in  all 
societies  which  have  reached  any  considerable  degree  of  advancement. 
This  matter  of  the  form  of  the  institt.ioii  is,  of  course,  determined  in 
a  municipal  society  by  its  laws;  and  these  are  in  turn  determined  by 
its  morality.  Ownership  is  awarded  in  accordance  with  the  sense  of 
right  and  fitness  wliich  prevails  among  the  members  of  society.  It  is 
this  which  determines  its  will,  and  its  will  is  its  law. 

In  seeking  for  the  moral  grounds  upon  which  to  make  its  award  of 
the  rights  of  private  ownership  that  which  is  first  and  universally  ac- 
cepted is  what  maybe  called  desert.  "  juum  cuique  tribuere,''^  lies  as  an 
original  conception  at  the  basis  of  all  J ..  \l.  prudence.  In  respect  to  land 
indeed,  an  original  grant  may  be  required  from  the  community  or  the 
sovereign;  but  whatever  a  ma,n produces  by  his  labor,  or  saves  by  the 
practice  of  abstinence,  is  justly  reserved  for  his  exclusive  use  and  benefit. 
This  is  the  principle  upon  which  the  right  of  private  property  is  by  the 
great  majority  of  jurists  placed;  and  it  is  often,  somewhat  incorrectly 
perhaps,  made  the  foundation  of  the  institution  of  jjroperty  itself.  In 
our  view  a  distinction  is  observable  between  the  institution  itself  and 
the  form  which  it  assumes.  The  first  springs  from  the  necessity  of 
peace  and  order, society  not  being  possible  without  it;  but  when  private 
property,  which  is  also  the  result  of  another  necessity,  namely,  the  de- 
mands of  civilized  life,  becomes  the  form  which  the  institution  assumes, 
the  principle  of  desert  comes  into  operation  to  govern  the  award, 

OWNEBSHIP  NOT  ABSOLUTE. 


III 

li 


But  what  is  the  extent  of  the  dominion  which  is  thus  given  by  the 
law  of  nature  to  the  owner  of  property?  This  question  has  much  im- 
portance in  the  present  discussion  and  deserves  a  deliberate  considera- 
tion. 

In  the  common  apprehension  the  title  of  the  possessor  is  absolute, 
and  enables  him  to  deal  with  his  property  as  he  pleases,  and  even,  if 
he  pleases,  to  destroy  it  This  notion,  sufficiently  accurate  for  most  of 
the  common  purposes  of  life,  and  for  all  controversies  between  man  and 
man,  is  very  far  from  being  true.  No  one,  indeed,  would  assert  that 
he  had  a  moral  right  to  waste  or  destroy  any  useful  thing;  but  this 
limitation  of  power  is,  perhaps,  commonly  viewed  as  a  mere  moral  or 


fROl'ERTY    IN   Tllte   ALASKAN   SEAL   HERD. 


59 


relipfious  precept,  for  the  violation  of  which  man  is  responsible  only  to 
his  Maker,  and  of  which  liuraan  law  takes  no  notice.  Tlio  truth  is  far 
otherwise.  Tliis  precept  is  the  basis  of  much  nuiniclpal  law,  and  has 
a  widely- reaching  operation  in  international  jurisprudence.  There  are 
two  propositions  belonging  to  this  part  of  our  inquiry,  closely  connected 
with  each  other,  to  which  the  attention  of  the  Arbitrators  is  i)articnlarly 
invited.  They  will  be  found  to  have  a  most  important,  if  not  a  wholly 
decisive,  bearing  upon  the  present  (!ontroversy. 

First.  No  possessor  of  property,  whether  an  individunl  man,  or  a 
nation,  has  an  absolute  title  to  it.  His  title  is  coupled  with  a  trust  for 
the  benefit  of  mankind. 

Second.  The  title  is  further  limited.  The  things  themselves  arc  not 
given  him,  but  only  the  usufruct  or  increane.  He  is  but  the  custodian 
of  the  stock,  or  principal  thing,  holding  it  in  trust  for  the  present  and 
future  generations  of  man. 

The  first  of  these  propositions  is  stated  almost  in  the  language  em- 
ployed by  one  of  the  highest  authorities  on  the  law  of  nature  and  na 
tions.  Says  Puff'endorf,  "God  gave  the  world,  not  to  this,  nor  to  that 
man,  but  to  the  human  race  in  general."'  The  bounties  of  nature  are 
gifts  not  80  much  to  those  whose  situation  ei«ables  them  to  gather  them, 
but  to  those  who  need  them  for  use.  And  Locke,  '<  God  gave  the  world 
to  men  in  common.'"  If  it  be  asked  how  this  gift  in  common  can  be 
reconciled  with  the  exclusive  possession  Avhich  the  institutioji  of  prop- 
erty gives  to  particular  nations  and  particular  men,  the  answer  is  by 
the  instrumentality  of  commerce  which  springs  into  existence  with  the 
beginnings  of  civilization  as  a  part  of  the  order  of  nature.  Indeed  it 
is  only  by  means  of  commerce  that  the  original  common  (lift  could 
have  been  made  effectual  as  such.  Every  bounty  of  nature,  how- 
ever it  may  be  gathered  by  this,  or  that  man,  will  eventually 
find  its  way,  through  the  instrumentality  of  commer<;e,  to  those  who 
waut  it  for  its  inherent  qualities.  It  is  for  these,  wherever  they 
may  dwell,  that  it  is  destined.  Were  it  not  for  these  the  bounty 
would  be  of  little  use  even  to  those  whose  sitnation  enables  them 
to  control  it  and  to  gather  it.  But  for  commerce,  and  the  ex- 
changes effected  by  it,  the  greatest  part  of  the  wealth  of  the  w^orld 
would  be  wasted,  or  unimproved.^    The  Alaskan  seals,  for  instance. 


'  Law  of  Nature  and  Nations.    Book  iv,  Chap,  v,  sec.  9. 
'  Civil  Government,  Chap,  v,  ^  34. 

'"Wherewith  accords  that  of  Libanitis,  God,  saith  he,  hath  not  mnde  any  one 
part  of  the  world  the  storehouse  of  all  his  blessings,  but  hath  wisely  distributed 


'{ 


GO 


ARGUMENT    OF   tHIE    tlNlTED    STATES. 


I    ^ 


I 


would  be  nearly  valneless.  A  few  liuiulreds,  r>r  thonaands  at  the  most, 
would  suffice  to  supply  all  the  needs  of  the  scanty  papulation  living 
on  the  islands  where  they  are  found,  or  along  the  shores  of  the  seas 
through  which  they  pass  in  their  migrations.  Indeed,  the  Pribilof 
Islands  would  never  have  been  inhabited,  or  eA^en  visited,  by  man 
except  for  the  purpose  of  capturing  seals  in  order  to  supply  the 
demands  of  distant  peoples.  The  great  blessing  to  mankind  at 
large  capable  of  being  att'orded  by  this  animal  would  have  been  wholly 
unrealized.  The  solt-  condition  upon  which  its  value  depends,  even 
to  those  wuo  pursue  and  capture  it,  is  that  they  are  able,  by  exchang- 
ing it  for  the  products  of  other  and  distant  nations,  to  furnish  them- 
selves with  many  blessings  which  they  greatly  desire. 

This  truth  that  nature  intends  her  bounties  for  those  who  need 
them,  wherever  they  may  dwell,  may  be  illuscrated  and  made  more 
clear  by  inquiring  upon  whom  the  loss  would  fall  if  the  gift  were  taken 
away.  Take,  for  j  istance.  the  widely  used  and  almost  necessary  article 
of  India  rubber.  It  is  produced  in  but  few  and  narrowly-Uuiited  areas, 
and  we  may  easily  suppose  that  by  some  failure  of  nature,  or  lui scon- 
duct  of  nuui,  the  production  is  arrested.  A  loss  would,  no  doubt,  be 
felt  by  those  who  had  been  engaged  in  gathering  it  and  exchanging  it 
for  other  (M>mmodiiies ;  and  a  still  more  extensivo  one  would  fall  upon 
the  largely  greater  number  whose  labor  was  applied  in  manufacturing 
it  into  the  various  forms  in  which  it  is  used;  but  the  loss  to  both  these 
classes  would  be  but  temporary.  The  cultivators  ould  raise  other 
l)roduct8,  and  the  manufacturers  could  employ  their  industry  in  other 
fields.  The  opportunities  which  nature  offers  for  the  employment  of 
labor  are  infinite  and  inexhaustible,  and  the  only  effect  of  a  cessation 
of  one  industry  is  to  turn  the  labor  devoted  to  it  into  other  channels. 
But  the  loss  to  the  consumers  of  the  article,  the  loss  of  those  who  need 
that  particular  thing,  wcmld  be  absolute  and  irreparable. 

If  these  views  are  well  founded  it  iollow&  that,  by  the  law  of  nature, 
every  nation,  so  far  as  it  possesses  the  fruits  of  the  earth  in  a  measure 
more  than  sufli(!ient  to  satisfy  its  own  needs,  is,  in  the  truest  sense,  u 


them  thTonch  all  nationi*.  that  so  each  tieedinfj  another's  help  he  might  thereby  lead 
men  to  KORiety;  and  to  tluH  (^nd  hi>  discovored  unto  them  tht>  art  of  niorcliiindising, 
that  8o  wliataocver  any  nation  produced  might  be  communicated  uuto  othan." 
"     •     •    flo  ThcBeua  speaks  very  pertinently — 

"  What  to  one  nation  nature  doth  deny, 
That  rfhe,  from  otliers.  doth  by  sea  supply." 

(Orotins;  Do  .Tnre  Belli  ac  Pacis,  Bookli,  Cliap.  ii,  $  13.)    See  also  Phillimoro,  inter- 
national Law,  vol.  I,  p.  261, 262. 


PROPERTY    IN   THE   ALASKAN   SEAL    HERD. 


61 


trustee  of  the  surplus  for  the  benefit  of  those  iu  other  parts  of  the  world 
who  need  them,  and  are  willing  to  give  in  exchange  for  them  the  prod- 
ucts of  their  own  labor;  and  the  truth  of  this  conclusion  and  of  the 
views  from  which  it  is  drawn  will  be  found  fully  confirmed  by  a  glance 
at  the  approved  usages  of  nations.  It  is  the  characteristic  of  a  trust 
that  it  is  obligatory,  and  that  in  case  of  a  refusal  or  neglect  to  perform 
it,  such  performance  may  be  compelled,  or  the  trustee  removed  and  a 
more  worthy  cu3tx)dian  selected  as  the  deposit  ory  of  the  trust.  It  is 
an  admitted  principle  of  the  law  of  nature  that  commerce  is  obligatory 
upon  all  nations;  that  no  nation  is  permitted  to  seclude  itself  from  the 
rest  of  mankind  and  interdict  all  commerce  with  foreign  nations. 
Temjjorary  prohibition  of  commerce  for  special  reasons  of  necessity  are, 
indeed,  allowed;  but  they  must  not  be  made  permanent.* 


'  The  instramentality  of  commerce  as  a  part  of  the  scheme  of  nature  in  securing 
to  mankind  in  general  the  enjoyment  of  lier  various  gifts,  in  whatsoever  quarter  of 
the  earth  they  may  be  found,  has  been  pointed  out  by  many  writers  upon  the  law  of 
nature  and  nations.  A  few  citations  will  be  sufliciout,  the  views  in  which  all  con- 
cur.   It  will  appear  from  those  which  are  Iiereiu  furnished — 

1.  That  man  does  not  bejjin  to  desire  the  benefit  of  the  gifts  to  be  found  in  other 
ands  and  in  which  he  is  entitled  to  share  until  ho  has  made  some  advances  towards 
civilization,  and,  conse<iuently,  commerce  may  be  said  to  be  the  oiTspring  of  civil- 
ization. 

2.  But  it  reacts  upon  and  greatly  stimulates  the  c-vuso  from  which  it  springs,  so 
that  civilization  may  also  be  said  to  be  thu  fruit  of  commerce. 

3.  In  its  relations  to  civilization  it  is  like  the  division  of  labor  and  has  some- 
times been  styled  "the  territorial  division  of  labor." 

4.  Doubtless  there  is  a  large  discretion  wliich  each  nation  may  justly  exercise  in 
respect  of  the  conditions  under  which  it  will  engage  in  comtnoree  with  other  na- 
tions. But  an  absolute  or  unreasonable  refusal  is  in  clear  violation  of  natural  law. 
It  is  a  denial  by  the  refusing  nation  of  the  fundamental  truth  that  the  bountiea  of 
nature  were  bestowed  upon  mankind. 

From  "Des  Uroits  et  des  Devoirs  des  Nations  Neutres  en  Tempa  de  Guerre  Mari- 
time," par  L.  B.  llautefeuille.     Paris,  1848.     Vol.  I,  p.  256 : 

"The  Sovereign  Master  of  nature  did  not  confine  himself  to  giving  a  particular 
disposition  to  every  man;  he  also  diversified  climates  and  the  nature  of  soils  To 
each  country,  to  each  region,  he  assigned  different  fruits  and  special  productions, 
all  or  nearly  all  of  which  were  susceptible  of  being  used  by  man  and  of  satisfying 
his  wants  or  his  pleasuTes.  Almost  all  regions  doubtless  produced  what  was  indis- 
pensable for  the  sustenance  of  their  inhabitants,  but  not  one  ])roduced  all  the  fruits 
that  were  necessary  to  meet  all  real  needs,  or  more  partiouLirly  all  couveutioual 
needs.  It  was,  therefore,  necessary  to  have  recourse  to  otlusr  nations  and  to  extend 
commerce.  Man,  impelled  by  that  instinct  which  leads  him  to  seek  perfection, 
created  new  needs  for  himself  as  he  made  new  discoveries.  He  accustomed  himself 
to  the  usr>  of  all  the  productions  of  the  earth  a:i>l  of  its  industry.  The  cotton, 
sugar,  coffee,  and  tobacco  of  the  New  World  have  become  articles  of  prime  necessity 
for  the  European,  and  an  immense  trade  is  carried  on  in  them.  The  American,  in 
turn,  can  notdispe.ise  with  the  varied  productions  of  European  manufacture.  The 
development  of  commerce,  that  is  to  say,  the  satisfaction  of  man's  instincts  of 
BooiabUity  uud  porfeutibility,  has  greatly  ooutributod  to^  cuuuecting  all  the  nations 


f 

■*,■ 


m 


J" 


62 


ARGUMENT  OP  THE  UNITED  STATES. 


A  sure  guaiauty  for  the  observance  of  this  trust  obligation  16  found 
m  the  imperious  and  universal  motive  of  self-interest.  The  desire  of 
ecvilized  man  to  gratify  his  numerous  wants  and  to  better  his  coudi- 
tmn.  so  strongly  impels  him  to  commerce  with  other  nations  that  no 
ocher  inducement  is  in  general  needed,  'rhe  instances  in  history  are 
rare  in  which  nations  have  exhibited  unwillingness  to  engage  in  com- 
mercial intercourse;  but  they  are  possible  under  peculiar  conditions, 
aasd  have  sometimes  actually  occurred.  Such  a  refusal  is  generally 
*>elieved  to  liave  been  the  real,  though  it  was  not  the  avowed,  cause  of 
Hie  war  waged  by  (iieat  Britain  against  China  in  1840. 

For  the  purposes  of  further  illustration,  a  case  may  be  imagined 
Btionger  than  any  of  the  actual  instances  referred  to.  Let  it  be  sup- 
ix»8ed  that  some  particidar  region  from  which  alone  a  commodity  deemed 


of  the  nnivorso;  it  has  served  as  a  vehicle,  so  to  speak,  for  the  performance  of  the 
duties  of  humnnity.  Cominorce  is  really,  therefore,  an  institution  of  primitive 
law;  it  has  its  source  and  its  origin  in  the  divine  law  itself." 

Prom  Vattol  (7th  Amer.  Ed.,  1819,  Bk.  ii,  oh.  ii,  sec.  21,  p.  143) : 

"Skc.  21.  All  men  ought  to  find  on  earth  the  things  they  stand  in  need  of.  In  the 
j)riinitivo  state  of  comniunion  they  took  them  wherever  thoy  happened  to  meet  with 
them  if  anothtr  hud  not  before  approi)riiitcd  them  to  his  own  use.  The  introduction  of 
dominion  and  propeity  could  not  de]prive  men  of  so  essential  a  right,  and,  conse- 
(lueutly,  it  can  not  take  place  without  leaving  them,  in  general,  some  moans  of  pro- 
curing what  is  useful  or  necessary  to  them.  This  means  commerce;  by  it  every  man 
may  still  supply  his  wants.  Things  being  now  become  property,  there  is  no  obtain- 
ing tlicm  without  the  owner's  consent,  nor  are  they  usually  to  be  had  for  nothing, 
but  they  may  be  bought  or  exclinnged  for  other  things  of  equal  value.  Men  are, 
therefore,  under  an  ohJujaUon  to  carry  on  that  commerce  with  each  other  if  they  wish 
not  to  deviate  from  the  vkivs  of  nature,  and  this  obligation  extends  also  to  xvhole  nations 
or  states.  It  is  seldom  that  nature  is  seen  in  one  place  to  produce  everything  neces- 
sary for  the  use  of  man ;  one  country  abounds  in  corn,  another  in  pastures  and  cattle, 
a  third  in  timber  and  metals,  etc  If  all  those  countries  trade  together,  as  is  agree- 
able to  humiiu  nature,  no  one  of  them  will  "je  without  such  things  as  are  useful  and 
necessary,  and  the  views  of  nature,  our  common  mother,  will  be  fullillcd.  Further, 
one  country  is  fitter  for  some  kind  of  products  than  for  another,  as,  for  instance, 
titter  for  the  vine  than  for  tillage.  If  trade  and  barter  take  place,  CA'ery  nation,  on 
the  certainty  of  procuring  what  it  wants,  will  onijdoy  its  lands  and  its  industry  in 
the  most  advantageous  manner,  and  mankiiul  in  general  prove  gainers  by  it.  Such 
are  the  foundations  of  the  general  obligations  incumb  nt  on  nations  reciprocally  to 
cultivate  commerce." 

From  "Lemons  do  Droit  da  la  Nature  et  des  Genu,"  par  M.  le  Professeur  Fdlice, 
Vol.  II.  (Droit  des  Gens).     Pariw,  \KW.     Leoon  x\n,  page  293; 

"The  need  of  this  exchange  is  based  npon  the  laws  of  nature  and  upon  the  wise 
arranj^cment  whiih  tlie  Supreme  Being  has  established  in  the  world,  each  region  and 
each  jiortion  of  which  furnishes,  indeed,  a  great  variety  of  ]irodnctions,  but  also 
lacks  certain  things  required  for  tlio  comfort  or  needs  of  man;  this  oliliges  men  to 
exchange  theu'  commodities  with  each  other  and  to  form  bonds  of  friendship; 


PROPERTY  IN  THE  ALASKAN  SEAL  HERD 


63 


necessary  by  man  everywhere,  such  as  Peruvian  bark,  could  be  pro- 
cured, was  within  tlie  exclusive  dominion  of  a  particular  power,  and 
that  it  should  absolutely  prohibit  the  exportation  of  the  commodity; 
could  there  be  any  well-founded  doubt  that  other  nations  would  be 
justified,  under  the  law  of  nature,  in  compelling  that  nation  by  arms 
to  permit  free  commerce  in  such  commodity? 

And  this  trust,  of  which  we  are  speaking,  is  not  limited  to  that  sur- 
plus of  a  nation's  production  which  is  not  needed  for  its  own  wants, 
but  extends  to  its  means  and  capabilities  for  production.  No  nation 
has,  by  the  law  of  nature,  a  right  to  destroy  its  sources  and  means  of 
production  or  leave  them  unimproved.  None  has  the  right  to  convert 
any  portion  of  the  earth  into  a  waste  or  desolation,  or  to  permit  any 
part  which  may  be  made  fruitful  to  remain  a  waste.  To  destroy  the 
source  from  which  any  human  blessing  flows  is  not  merely  an  error,  it 


lip 

i 


whereas,  otherwise,  their  passions  would  impel  them  to  hate  and  destroy  each 
other.     *    *     * 

"The  law  of  commerce  is  therefore  haned  upon  the  obligation  under  which  nations 
are  to  assist  each  other  mutually,  and  to  contribute,  as  far  ii8  lies  in  their  power, 
to  the  happiness  of  each  other." 

From  Levi  (Iiitcruationai  Commercial  Law,  2d  ed.,  18(53.  Vol.  i,  Preface,  pp. 
xxxix,  xl) : 

*  *  *  "  Commerce  ia  a  law  of  nature,  and  the  right  of  trading  is  a  natural 
right. (*)  But  it  is  only  an  imperfect  right,  inasauKh  as  each  nation  is  the  sole 
judge  of  what  is  advautagious  or  disadvantiigoons  to  itself;  and  whether  or  not  it 
he  convenient  for  her  to  cultivate  any  branch  of  trade,  or  to  open  trading  intercourse 
with  any  one  country.  Hence  it  is  tliat  no  nation  has  a  right  to  compel  another  na- 
tion to  enter  into  trading  inti.'rcourse  with  licrselC,  or  to  pass  laws  for  the  benclit  of 
trading  and  traders.  Yet  the  refusal  of  tliis  natnril  riglit,  whether  as  against  one 
nation  only,  or  as  against  all  nations,  would  constitute  an  offense  against  interna- 
tional law,  and  it  was  tliis  refusal  to  trade,  and  the  exclusion  of  Itritish  traders  from 
her  cities  and  towns,  that  led  to  the  war  with  China. 

From  Flallock  (Inteinational  Law  (FA.  L8G1),  Ch.  xi,  sec.  13,  p.  280): 

"Sec.  13.  To  tliia  right  of  trade  there  is  a  corresponding  duty  of  mutual  commerce, 
fouutU'd  on  the  general  law  of  nature;  fnf,  says  Vattd,  ' ono,  conntry  abcmnds  in 
corn,  another  in  pastures  and  cattle,  a  tliird  in  timber  anil  luetalx;  all  these  countries 
trading  together,  agreealdy  to  human  nature,  no  one  will  he  without  such  things  as 
are  useful  and  necessary,  ami  the  views  of  nature,  our  couimon  nmthei-,  will  be  ful- 
filled. Further,  one  country  is  titter  for  sonu;  kind  of  products  than  another;  as 
for  vineyards  more  than  tillage.  If  trade  and  barter  take  placie,  every  nation,  on 
the  certainty  of  procuring  what  it  wants,  will  euijiloy  its  industry  and  its  ground  in 
the  most  advantageous  manner,  and  mankind  in  general  ])rove8  a  gainer  by  it.  Such 
are  the  foundations  of  the  general  obligation  incumbent  on  nations  reciprocally  to 
cultivate  commerce.  Therefore,  everyone  is  not  only  to  join  in  trade  aa  far  as  it 
reasonably  can,  but  even  to  countonauco  and  prouuito  it.'" 

Roddie  (Inquiries  into  International  Law.  2d  Ed.  1851,  Ch.  v.,  Pt,  u.,  sub  sec.  ii., 
Art.  II,  p.  207) : 

"But  the  chief  source  of  the  intercourie  of  nations  in  tlioir  individual  capacity 


III 

k 


il;?i}. 

'■■!»: 


■1^ 


'  Vttttul,  b.  I,  ch.  8,  see.  88. 


9 


64 


ARGUMENT  OP  THE  UNITED  STATES. 


4 


Is  a  crime.  And  the  wrong  is  not  limited  by  tlie  boundaries  of  nations, 
but  is  inflicted  upon  tliose  to  whor .  tlie  blessing  would  be  useful  wher- 
ever they  may  dwell.  And  those  to  whom  the  wrong  is  done  have  the 
right  to  redress  it. 

Let  the  case  of  the  article  of  India  rubber  be  again  taken  for  an  illus- 
tration, and  let  it  be  supposed  that  the  nation  which  held  the  fields  from 
which  the  world  obtained  its  chief  supply  should  destroy  its  plantations 
and  refuse  to  continue  the  fulcivation,  can  it  be  doubted  that  other 
nations  would,  by  the  law  of  nature,  be  justified  in  taking  possession  by 
force  of  the  territory  of  the  recreant  power  and  establishing  over  it  a 
governmental  authority  which  would  assure  a  continuance  of  the  culti- 
vation ?  And  what  would  this  be  but  a  removal  of  the  unfaithful  trus- 
tee, and  the  appointment  of  one  who  would  perform  the  trustt' 


is  the  exchange  of  commodities,  or  natural  or  artificial  production.  The  territory 
of  ouc  State  very  rarely  produces  all  that  is  requisite  for  the  supply  of  the  wants, 
for  the  use  and  enjoyment  of  its  inhabitants.  To  a  certain  extent  one  state  gener- 
ally abounds  in  what  others  want.  A  mutual  exchange  of  superfluous  commodities 
is  thus  reciprocally  advautagtous  for  both  nations.  And,  as  it  is  a  moral  duty  in 
individuals  to  promote  the  welfareof  their  neiglibor,  it  appears  to  be  also  the  moral 
duty  of  a  nation  not  to  refuse  commerce  with  other  nations  when  that  commerce  is 
not  hurtful  to  itself." 

From  Kent  (Commentaries  on  American  Law.  (TLe  Law  of  Nations,  part  1.) 
Ed.  1866.    Ch.  II.,  p.  117). 

"As  the  aim  of  international  law  is  the  happiness  and  perfection  of  the  general 
society  of  manliind,  it  enjoins  upon  every  nation  the  punctual  observance  of  benev- 
olence and  good  will,  as  well  as  of  justice  toward  its  neighbors.  This  is  equally 
the  policy  and  the  duty  of  nations.  They  ought  to  cultivate  a  free  intercourse  for 
commercial  purposes,  in  order  to  supply  each  other's  wants  and  promote  each  other's 
prosperity.  The  variety  of  climates  and  productions  on  the  surface  of  the  globe, 
and  the  facility  of  communication  by  means  of  rivers,  lakes,  and  the  ocean,  invite  to 
a  liberal  commerce,  as  agreeable  to  the  law  of  nature,  and  extremely  conducive  to 
national  amity,  industry,  and  happiness.  The  numerous  wants  of  civilized  lila  can 
only  be  supplied  by  mutual  exchange  between  nations  of  the  peculiar  productions 
of  each." 

'Cases  in  which  nations  have  supposed  themselves  justified  in  interfering  with  the 
territory  and  aft'airs  of  other  nations  liave  frequently  occurred.  The  war  celebrated 
in  Grecian  history  as  the  first  Sacred  War  was  an  early  and  illustrative  instance 
growing  out  of  the  religious  sentiment.  The  temple  of  Apollo  at  Delphi  wasthepriu- 
C.'  pal  shrine  in  the  religion  of  Greece.  It  was  within  the  territory  of  the  state  of  Krihsa, 
whose  people  had  desecrated  by  cultivation  the  surroundiugsof  thespotwhere  it  was 
situated,  and  by  levying  tolls  and  other  exac  ions  had  obetructed  the  pilgrinuiges 
which  the  votaries  of  the  god  wore  wont  to  r.iake.  A  large  part  of  Greece  arose  to 
punish  this  violation  of  the  coniuion  right,  and  in  a  war  of  ten  years'  duration  de- 
stroyed the  town  of  Krissa,  and  consecrated  the  plain  around  the  temple  to  the 
service  of  the  god  by  docieeing  that  it  shculd  forever  remiau  untillod  and  uuplnntcd. 
(Groto,  History  of  Greece,  Loud.,  1817,  ^  ol.  IV,  p.  84.)  Chi:ia  has  furnished  one  of 
the  few  iustances  in  modern  times  of  uawillingnosR  to  engage  in  foreign  coi  'uierce. 
This  was  not  the  avowed  but  was  probally  one  of  the  real  causes  of  the  war  vt  uged 
against  that  nation  by  Great  Britain  in  1810. 


PROPERTY    IN   THE    ALASKAN    SEAL    HERD. 


65 


It  is,  indeed,  upon  this  ground,  and  this  ground  alone,  that  the  con- 
quest by  civilized  nations  of  countries  occupied  by  savages  has  been, 
or  can  be,  defended.  The  great  nations  of  Europe  took  possession  by 
force  and  divided  among  themselves  the  great  continents  of  North  and 
South  America.  Great  Britain  has  incorporated  into  her  extensive 
empire  vast  territories  in  India  and  Australia  by  force,  and  against  the 
will  of  their  original  inhabitants.  She  is  now,  with  France  and  Ger- 
many as  rivals,  endeavoring  to  establish  and  extend  her  dominion  in 
the  savage  regions  of  Africa.  The  United  States,  from  time  to  time, 
expel  the  native  tribes  of  Indians  from  their  homes  to  make  room  for 
their  own  people.  These  acts  of  the  most  civilized  and  Oltristiaii  nations 
are  inexcusable  robberies,  unless  they  can  be  defended,  under  the  law 
of  nature,  by  the  argument  that  these  uncivilized  countries  were  the 
gifts  of  nature  to  man,  and  that  their  inhabitants  refused,  or  wore  una- 
ble, to  perform  that  groat  trust,  imposed  upon  all  nations,  to  make  the 
capabiUties  of  the  countries  which  thoy  hold  subservient  to  the  needs 
of  man.  And  this  argument  is  a  sufficient  defense,  not  indeed  for  the 
thousand  excesses  which  have  stained  these  conquests,  but  for  the 
conquests  themselves. 

The  second  proposition  above  advanced,  namely,  that  the  title  which 
nature  bestows  upon  man  to  her  gifts  is  of  the  usufruct  only,  is,  indeed, 
but  a  corollary  from  that  Avhich  has  just  been  discussed,  or  ratlier  a 
part  of  it,  for  in  saying  that  the  gift  is  not  to  this  nation  or  that,  but  to 
mankind,  all  generations,  future  as  well  as  present,  are  inteaded.  The 
earth  was  designed  as  the  permanent  abode  of  man  through  ceaseless 
generations.  Each  generation,  as  it  appears  upon  the  scene,  is  entitled 
only  to  use  the  fair  inheritance.  It  is  against  the  law  of  nature  that  any 
waste  should  be  committed  to  the  disadvantage  of  the  succeeding  ten- 
ants. '    The  title  of  each  generation  may  be  described  in  a  term  familiar 

'  Since  the  power  of  man  over  things  extends  no  further  than  to  use  thorn  accord- 
ingly as  they  are  in  their  nature  usable,  thiugs  are  not  matter  for  consideration  in 
law  except  in  regard  to  the  use  or  treatmeui  of  whicli  they  are  capable.  Hence  no 
right  to  things  can  exist  beyond  tho  right  to  use  them  according  to  their  nature; 
and  this  right  is  Property.  No  doubt  a  person  can  wantonly  destroy  a  subject  of 
property,  or  treat  it  in  as  many  ways  which  are  rather  an  abuse  than  a  use  of  the 
thing.  But  su?h  abuse  is  wasteful  and  immoral;  and  that  it  is  not  at  the  same  time 
illegal,  is  simply  because  there  are  many  duties  of  morality  which  it  is  impossible, 
inexpedient,  or  unnecessary  for  the  positive  law  t'.o  encoi^porate  or  enforce.  I  there- 
foi'e  define  property  to  be  the  righi;  to  tho  exclusive  use  of  a  thing. 

It  will,  perhaps,  be  objected  to  this  that  if  gathering  the  acorns,  or  other  fruits  of 
the  earth,  etc.,  makes  a  righO  to  thoiu,  thou  any  one  muy  engross  as  much  as  ho  will. 
14740 5 


m' 


'■m- 


M 


66 


ARGUMENT   OF   THE   UNITED   STATES. 


to  English  lawyers  as  limited  to  an  estate  for  life;  or  it  may  with  equal 
propriety  be  said  to  be  coupled  with  a  trust  to  transmit  the  iuheritauce 
to  those  who  succeed  in  at  least  as  good  a  condition  as  it  was  found, 
reasonable  use  only  extjepted.  That  one  generation  may  not  only  con- 
sume or  destroy  the  annual  increase  of  the  products  of  the  earth,  but  the 
stock  also,  thus  leaving  an  inadequate  provision  for  the  multitude  of 
successors  which  it  brings  into  life,  is  a  notion  so  repugnant  to  reason 
as  scarcely  to  need  formal  refutation.  The  great  writers  upon  the  law 
of  nature  and  nations  properly  content  themselves  with  simply  affirm- 
ing, without  laboring  to  establish,  these  self-evident  truths. 

The  obligation  not  to  invade  the  stock  of  the  provision  made  by 
nature  for  the  support  of  human  life  is  in  an  especial  manner  imposed 
upon  civilized  societies;  for  the  danger  proceeds  almost  wholly  from 
them.  It  is  commerce,  the  fruit  of  civilization,  and  which  at  the  same 
time  extends  and  advances  it,  that  subjects  the  production  of  each 
part  of  the  globe  to  the  demands  of  every  other  part,  and  thus  threat- 
ens, unless  the  tendency  is  counteracted  by  efficient  husbandry,  to 
encroach  upon  the  sources  of  supply.  The  barbaric  man  with  sparse 
numbers  scattered  over  the  face  of  the  earth,  with  few  wants,  and  not 
engaged  in  commerce,  makes  but  a  small  demand  upon  tlie  natural  in- 
crease. He  never  endangers  the  existence  of  the  stock,  and  neither 
has,  nor  needs,  the  inteUigent  foresight  to  make  provision  for  the  future. 
But  with  the  advance  of  civilization,  the  increase  in  population,  and  the 
multiplication  of  wants,  a  peril  of  overconsumption  arises,  and  along 
with  it  a  development  of  that  prudential  wisdom  which  seeks  to  avert 
the  danger. 

The  great  and  principal  instrumentality  designed  to  counteract  this 
threatening  tendency  is  the  institution  of  private  individual  property, 
which,  by  holding  out  to  eveiy  man  the  ptomise  that  he  shall  have  the 
exclusive  possession  and  enjoyment  of  any  increase  in  the  products  of 
nature  which  he  may  etfect  by  his  care,  labor,  and  abstinence,  brings 
into  play  the  powerful  motive  of  self-interest,  stimulates  the  exertion 
in  every  direction  of  all  his  faculties,  both  of  mind  and  body,  and  thus 

To  which  T  answer:  Not  so.  The  same  law  of  nature  that  does  by  this  means  give 
us  property,  does  also  bound  tliat  property  too.  "  God  has  given  us  all  things  richly," 
(1  Tim.  vi,  17,)  is  the  voice  of  reason  con'^rmed  by  inspiration.  But  how  far  has  he 
given  it  to  us  t  To  enjoy.  As  much  as  any  one  cau  make  use  to  any  advantage  of  life 
before  it  spoils,  so  much  he  may  by  his  labor  fix  a  property  in.  Whatever  is  beyond 
this  is  more  than  hi^  share,  and  belongs  to  others.  Nothing  was  made  by  God  for 
man  to  spoil  or  des  ;roy.    (S.  Martin  Leaks,  Juiid.  Soc.  Papers,  Vol.  1,  p.  532.) 


PROPERTY   IN   THE    ALASKAN   SEAL   HERD. 


67 


leads  to  a  prodi|rioasly  increased  production  of  the  fruits  of  the  earth. 

There  are  some  provisions  to  this  end  which  are  beyond  the  power 
of  private  men  lio  supply,  or  for  supplying  which  no  suflBcient  induce- 
ment can  be  held  out  to  them,  inasmuch  as  the  rewards  can  not  be 
secured  to  them  exclusively;  and  here  the  self-interest  of  nations  sup- 
plements and  cooperates  with  that  of  individuals.  A  large  share  of 
the  legislative  policy  of  civilized  states  is  devoted  to  making  provision 
for  future  generations.  Taxation  is  sought  to  be  limited  to  the  annual 
income  of  society.  Permanent  institutions  of  science  are  established 
for  the  purpose  of  acquiring  a  fuller  knowledge  of  natural  laws,  to  the 
end  that  waste  may  be  restricted,  the  earth  be  made  more  fruitful,  and 
the  stock  of  useful  animals  increased.  The  destruction  of  useful  wild 
animals  is  sought  to  be  prevented  by  game  laws,  and  the  attempt  is 
even  made  to  restock  the  limitless  areas  of  the  seas  with  animal  life 
which  may  be  made  subservient  to  man. 

The  same  policy  is  observable  in  the  ordinary  municipal  law  of  states. 
Whenever  the  possessor  of  property  is  incapable  of  good  husbandry, 
and  therefore  liable  to  waste  or  misapply  that  part  of  the  wealth  of  so- 
ciety which  is  confided  to  him,  he  is  removed  from  the  custody,  and  a 
more  prudent  guardian  substituted  in  his  place.  Infants,  idiots,  and 
insane  persons  are  deprived  of  the  control  of  their  property,  and  the 
state  assumes  the  guardianship.  This  policy  is  adopted  not  merely  out 
of  regard  to  the  private  interests  of  the  present  owner,  but  in  order  also 
to  promote  the  permanent  objects  of  society  by  protecting  the  interests 
of  future  generations. 

There  are  some  exceptions,  rather  apparent  than  real,  to  the  law 
which  confines  each  generation  to  the  increase  or  usufruct  of  the 
earth.  Nature  holds  in  some  of  her  storehouses  the  slow  accumula- 
tions of  long  preceding  ages,  which  can  not  be  reproduced  by  the 
agency  of  man.  The  products  of  the  mineral  kingdom,  when  con- 
sumed, can  not  be  restored  by  cultivation.  But  here  the  operation  of 
the  institution  of  private  property  is  still  effective,  by  exacting  the 
highest  price,  to  limit  the  actual  consumption  to  the  smallest  extent 
consistent  with  a  beneficial  use.  Again,  it  is  not  possible  to  limit  the 
consumption  of  useful  wild  birds  to  the  annual  increase;  for  they  can 
not  be  made  the  subjects  of  exclusive  appropriation  as  property,  and 
consequently  can  not  be  increased  in  numbers  by  the  care  and  al  3ti- 
nence  of  individual  man.  The  motive  of  self-interest  can  not  here  be 
brought  into  play.    But  society  still  makes  the  only  preservative  effort 


It 


n 


68 


ARGUMENT   OP   THE   UNITED    STATES. 


in  its  power  by  reatricting  consumption  through  the  agency  of  game 
laws. 

So,  also,  in  the  case  of  fishes  inhabiting  the  seas  and  reprodncing  their 
species  therein.  It  is  impossible  to  limit  the  extent  to  which  they  may 
bie  captnreu;  but  here  nature,  as  if  conscious  of  the  inability  of  man 
to  take  care  of  the  future,  removes  the  necessity,  in  most  cases,  for  such 
care  by  the  enormous  provision  for  reproduction  which  she  makes. 
The  possible  necessity,  however,  or  the  wisdom  of  endeavoring  to  sup- 
plement the  provision  of  nature,  has  already  been  taken  notice  of  by 
man,  and  efforts  are  now  in  pr'^gress  to  prevent  an  apprehended  de- 
strnction  of  the  stock.  The  case  of  fishes  resorting,  for  the  purposes 
of  reproduction,  to  interior  waters,  has,  for  a  long  time,  engaged  the 
attention  of  governments,  and  much  success  has  followed  efforts  to 
make  the  annual  increase  adequate  to  human  wants. 


I 


SUMMAEY  O^  DOOTEINES  ESTABLISHED. 

The  foregoing  discussion  concerning  the  origin,  foundation,  extent, 
form,  and  limitations  of  the  institution  of  property  will,  it  is  believed, 
be  found  to  fiirnish,  in  addition  to  the  doctrines  of  municipal  law, 
decisive  tests  for  the  determination  of  the  principal  question,  whether 
the  United  States  have  a  property  in  the  seal  herds  of  Alaska ;  but  it 
may  serve  the  purposes  of  convenience  to  present,  before  proceeding 
to  apply  the  conclusions  thus  reached,  a  summary  of  them  in  a  concise 
form. 


First.  The  institution  of  property  springs  from  and  rests  upon  two 
prime  necessities  of  the  human  race: 

1.  The  establishment  of  peace  and  order,  which  is  necessary  to  the 
existence  of  any  form  of  society. 

2.  The  preservation  and  increase  of  the  useful  products  of  the  earth, 
in  order  to  furnish  an  adequate  supply  for  the  constantly  increasing 
demands  of  civilized  society. 


Second.  These  reasons,  upon  which  the  institution  of  property  is 
founded,  require  that  every  ustful  thing,  the  supply  of  which  is  limited, 


PROPERTY    IN    THE    ALASKAN    SEAL    HERD. 


69 


and  wliich  is  capable  of  owncrsliip,  sliould  be  assigned  to  some  legal 
and  determinate  owner. 


Third.  TUe  extent  of  the  dominion  which,  by  the  law  of  nature,  is 
conferred  upon  particular  nations  over  the  things  of  the  earth,  is  limited 
in  two  ways: 


1.  They  are  not  made  the  absolute  owners.  Their  title  is  conplod 
with  a  trust  for  the  benefit  of  mankind.  The  human  race  is  entitled  to 
participate  in  the  enjoyment. 

2.  As  a  corollary  or  part  of  the  last  foregoing  proposition,  the  things 
themselves  are  not  given;  but  only  the  increase  or  usufruct  thereof.* 

APPLICATION  OT"  THE  FOREGOING  PRINCIPLES  TO  THE  QUESTION  OF 
PROPERTY  IN  THE  ALASKAN  HERD  OF  SEALS. 

In  entering  upon  the  particular  discussion  whether,  upon  the  princi- 
ples above  established,  the  United  States  have  a  property  interest  in 
the  seal  herd,  it  is  obvious  that  we  must  have  in  mind  a  body  of  facts 
which  have  not,  as  yet,  been  fully  stated. 

"We  were  obliged,  indeed,  while  showing  that  the  seals  mast  be  re- 
garded as  the  subjects  of  property  under  the  settled  and  familiar  rules 
of  municipal  law,  to  briefly  point  out  that  the  question  whether  they 
were,  under  that  law,  the  subjects  of  property  depended  upon  their 
nature  and  habits,  and  not  upon  whether  they  were  to  be  classed  under 
one  or  the  other  of  the  vague  and  uncertain  general  divisions  of  wild 
and  tame;  and  also  that  they  had,  as  part  of  their  nature  and  habits, 
all  the  essential  qualities  upon  which  that  law  had  declared  several 
other  descriptions  of  animals  commonly  designated  as  wild  to  be,  nev- 
ertheless, the  subjects  of  property.  But  this  brief  description  is  not 
sufficient  for  the  purposes  of  the  broader  argument  upon  which  we 
are  now  engaged.  We  should  have  in  mind  a  complete  knowledge  of 
every  material  fact  connected  with  these  animals. 

'  In  the  foregoing  discussiou,  -wliich  involves  only  the  most  general  prlnciplcB, 
and  concerning  which  there  is  little  controversy,  wo  have  avoided  frequent  refer- 
ence to  authorities  in  order  not  to  interrupt  the  attention.  But  an  examination  of 
the  authorities  shonld  not  be  omitted.  To  facilitate  this,  somewhat  copious  cita- 
tions are  gathered  and  arranged  in  the  Appendix  to  this  portion  of  the  argument. 


m 
I: 


1 


70 


ARGUMENT   OF   THE   UNITED    STATES. 


i 


The  first  step,  tliereforo,  in  the  further  progress  of  our  argunioiit 
must  be  to  assemble  more  precisely  and  fully  our  information  concern- 
ing the  utility  of  these  animals,  their  nature  and  habits,  the  modes  by 
which  they  are  pursued  and  captured,  Mie  danger  of  extermination  to 
which  they  are  exposed,  from  what  modes  of  capture  that  danger  arises, 
whether  it  is  capable  of  being  averted,  and  by  what  means.  We  pro- 
ceed, therefore,  to  place  before  the  learned  Arbitrators  a  concise  state- 
ment of  the  facts  bearing  upon  these  points. 

And  first,  concerning  their  ntilily.  That  they  belong  to  the  class  of 
useful  animals  is,  of  course,  a  conceded  fact;  but  in  this  general  admis- 
sion the  extent  of  the  utility,  the  magnitude  of  the  blessing  which  they 
bring  to  man,  may  not  be  adequately  estimated.    They  are  useful  for 

food,  and  constitute  a  conciderable  part  of  the  provision  for  this  pur- 
pose which  is  available  to  many  of  the  native  tribes  of  Indians  vho 

inhabit  the  coasts  along  which  their  migrations  extend.  They  are  ab- 
solutely necessary  for  this  purpose  to  the  small  native  population  of  the 
Pribilof  Islands.  These  could  not  subsist  if  this  provision  were  lost. 
They  are  useful  for  the  oil  which  the>  afford;  but  their  principal  utility 
consists  in  their  skins,  which  afford  jlothing,  not  i>uly  to  the  native 
tribes  above  mentioned,  but,  when  prepared  by  the  skill  which  is  now 
employed  upon  them,  furnish  a  garment  almost  unequaled  for  its  com- 
fort, durability,  and  beauty.  There  is,  indeed,  no  part  of  the  animal 
which  does  not  subserve  some  human  want.  The  eagerness  with  which 
it  is  sought,  and  the  high  price  which  the  skins  command  in  the  mar- 
kets of  the  world,  are  further  proof  of  its  exceeding  utility.  Its  prodi- 
gious numbers,  even  after  the  havoc  which  has  been  wrought  by  the  re- 
lentless war  made  upon  it  by  man,  exhibit  the  magnitude  of  the  value 
of  the  species;  and  if  we  add  to  these  numbers,  as  we  justly  may,  the 
increase  which  would  come  if  its  former  places  of  resort,  which  have 
been  laid  waste  by  destructive  pursuit,  should  be  again,  by  cateful  and 
protected  cultivation,  repeopled,  the  annual  supply  would  exceed  the 
present  yield  perhaps  tenfold. 

Leaving  out  of  view  here  the  unlawful  character  of  the  employment, 
we  may  say  that  there  is  a  further  utility  in  the  employment  given  to 
human  labor  in  the  pursuit  and  capture  of  the  animal  and  the  manu- 
facture of  the  skins.  There  are  probably  two  thousand  persons  em- 
ployed for  a  large  part  of  the  year  in  the  taking  of  seals  at  sea,  and  a 
large  number  in  the  building  of  the  vessels  and  making  of  the  imple- 
ments required  in  that  occupation.    A  much  larger  number,  princix)ally 


PROPERTY    IN   THE    ALASKAN   SEAL    HERD. 


71 


inhabitants  of  Great  Britain,  are  wholly  tMnploycd  in  the  propiuation  of 
the  skins  for  market.  The  animal  value  of  the  manufactured  i)roduct 
can  scarcely  be  leaa  than  $5,000,000  or  $6,000,000. 

But  this  last  mentioned  utility,  that  which  arises  from  the  employ- 
ment given  to  Industry,  is  not  absolnte  and  permanent.  .  If  the 
industry  were  destroyed  by  the  total  destruction  of  the  seals,  some 
inconvenience  would  doubtless  be  felt  before  the  labor  could  be 
diverted  into  other  channels.  It  could,  however,  and  would,  be  so  di- 
verted, and  the  loss  would  thus  be  repaired.  But,  as  already  observed, 
the  case  would  be  different  with  the  loss  inflicted  upon  those  who  w«ethe 
skins.  No  substitute  could  supply  this  loss;  nor  would  there  be  any 
corresponding  gain.  In  the  case  of  some  useful  wild  animals,  the 
American  bipon,  for  instance,  which  inhabit  the  earth  and  subsist  upon 
its  fruits,  and  which  are  necessarily  exterminated  by  the  occupation  of 
the  wild  regions  over  which  they  roam,  there  is  a  more  than  compen- 
sating advantage  in  the  m  re  numerous  herds  of  tamed  animals  which 
subsist  xipon  the  same  food.  But  the  seal  occupies  no  soil  which 
would  otherwise  be  useful.  The  food  upon  which  it  subsists  comes 
from  the  illimitable  storehouses  of  the  seas,  and  could  not  otherwise  be 
made  productive  of  any  distinct  utility. 

We  are  next  to  take  into  more  particular  consider.ation  the  nature 
and  habits  of  the  seal,  and  the  other  circumstances  above  adverted  to 
which  enable  us  to  measure  the  perils  to  which  the  existence  of  the 
race  is  exposed,  and  the  means  by  which  these  may  be  best  counter- 
acted. It  is  here  that  we  encounter,  for  the  first  time,  any  material 
contradiction  and  dispute  in  the  evitlence;  and,  inasmuch  as  it  is  in  a 
high  degree  important  that  we  should  ascertain  the  pi'ecise  truth  upon 
these  points,  it  should  be  clearly  understood  what  evidence  is  really 
before  the  arbitrators,  and  what  measure  of  credit  and  weight  should 
be  allowed  to  the  different  classes  of  evidence.  Any  critical  and  de- 
tailed discussion  of  the  evidence,  if  incorporated  into  the  body  of  the 
argument,  might  involve  interruptions  too  much  protracted  in  the  chain 
of  reasoning,  and  will,  for  that  reason,  be  separately  presented  in  ap- 
pendices; but  some  general  notion  should  be  had  at  the  outset  of  the 
relative  importance  of  the  various  pieces  of  evidence. 

First.  There  is  a  large  body  of  common  Jcnowlcdge  respecting  the 
natural  history  of  animals  and  the  facts  of  animal  life,  which  all  intel- 
ligent and  well  educated  minds  are  presumed  to  possess.  In  the  ab- 
Bcnce  of  those  facilities,  such  as  municipal  tribunals  ati'ord  for  the  pro- 


m\ 


I 


m 


Mm  I 


fii- 


^T 


72 


ARGUMKNT   OF   THE   UNITED   STATES. 


i 


ill 


(Itictinn  and  cxaniiinition  of  witiiossos,  it  is  supposed  by  tho  undor- 
Bigncd  that  this  common  kno\vled{,'('  niay,  with  largo  latitude,  be  deemed 
to  be  already  possessed  by  the  learned  Arbitrators,  and  to  be  available 
in  the  discussion  and  decision  of  the  controversy. 

Second.  In  tho  next  place  this  knowledge  may  be  supplemented  by 
an  appeal  to  the  authorative  writings  of  scientific  and  learned  men, 
and  also  to  the  writings  of  trustworthy  historians  and  of  actual  ob- 
servers of  the  facts  which  they  relate. 

Third.  The  reports,  botii  joint  and  separate,  of  the  Commissioners 
appointed  in  pursuance  of  the  ninth  article  of  the  Tre<\.ty,  are,  by  the 
terras  of  the  Treaty,  wat/eevideiice,  and  were  undoubtedly  contemplated 
as  likely  to  furnisii  most  important  and  trustworthy  information. 

Fourth.  The  testimony  of  ordinary  witnesses,  actual  observers  of  the 
facts  to  which  they  testify.  This  is  contained  in  ex  parte  depositions, 
but  must,  notwithstanding,  be  received  as  competent.  No  mode  hav- 
ing been  provided  by  which  witnesses  could  be  subjected  to  cross-ex- 
amination, these  depositions  must  be  accepted  as  belonging  to  the  class 
of  best  obtainable  evidence.  The  necessity  of  caution  and  scrutiny  in 
the  use  of  it  is  manifest;  but  it  may  be  found  to  be  of  great  value,  de- 
pending upon  the  number  of  concurring  voices,  and  the  degree  of  intel- 
ligence and  freedom  from  bias  which  may  be  exhibited. 

Concerning  the  reports  of  the  Commissioners,  some  observations  are 
appropriate  in  this  place.  Their  duties  were  defined  in  concise  but  very 
clear  language  in  the  ninth  article  of  the  Treaty,  as  follows: 

Each  Government  sh.all  .appoint  two  Commissioners  to  investigate, 
conjointly  with  the  Commissioners  of  the  other  Government,  all  the 
fa(!ts  having  relation  to  seal  life  in  Eering  Sea,  and  the  measures 
necessary  for  its  proper  protection  and  preservation. 

The  four  Commissioners  shall,  so  far  as  they  may  be  able  to  agree, 
make  a  joint  report  to  each  of  the  two  Governments,  and  they  shall 
also  report,  either  jointly  or  severally,  to  each  Government  on  any 
points  npon  which  they  may  be  unable  to  agree. 

They  found  themselves  unable  to  agree,  except  upon  a  very  few  points, 
the  most  important  of  which  are  expressed  in  the  following  language: 

5.  We  are  in  thorough  agreement  that,  for  industrial  as  well  as  for 
other  obvious  reasons,  it  is  incumbent  upon  all  nations,  and  particu- 
larly upon  those  having  direct  commercial  interests  in  fur-seals,  to  pro- 
vide for  their  protection  and  preservation.     •    •    # 

7.  We  find  that  since  the  Alaska  purchase  a  marked  diminution  in 
the  number  of  seals  on  and  habitually  resorting  to  the  Pribilof  Islands 
has  taken  place;  that  it  has  been  cumulative  in  effect,  and  that  it  is  the 
result  of  excessive  killing  by  nian.^ 

>  Case  of  the  United  States,  p.  309. 


1' 


PUOr-KIlTY    IN    THE    ALASKAN    .",.,AL    HERD. 


78 


Tlu'so  gentlcMucn  wcro,  some  of  tlieiii  at  U'list,  inou  etaineiit 
in  the  world  of  scitMice,  imd  sickiiowied^^'cd  experts  upon  the 
subject  committed  tiO  them  for  examination.  The  hinguape  of  the 
treaty  simply  called  for  their  opinions  and  julvice  upon  a  question 
mainly  scientific.  What  was  the  reason  which  prevented  them  from 
coming  to  au  agreement  I  Was  it  that  the  question  was  a  difficult  and 
doubtful  one  upon  which  men  of  science  might  well  differ?  It  would 
seem  not.  It  is  described  in  the  joint  report  as  being  <*  considerable 
difference  of  opinion  on  certain  fundamental  propositions."  What  it 
really  was  appears  from  the  separate  Report  of  the  Commissioners  of 
the  United  States.'  They  conceived,  as  is  therein  stated  by  them,  that 
the  only  subject  which  they  were  to  consider  was  the  facts  relatitig  to 
seal  life  in  the  Bering  Sea,  and  what  measures  were  necessary  to 
secures  its  preservation.  If  there  were  any  question  of  property,  or 
international  right,  or  political  expediency,  involved,  it  was,  presumably, 
to  be  determined  by  others.  They  had  no  qualifications  for  such  a  task, 
and  were  not  called  upon  to  perform  it.  But  the  Conjmissioners  of 
Great  Britain  took  a  different  view.  In  that  view  the  question  of 
the  respective  national  rights  of  Great  Britain  and  the  United  States 
was  one  of  "fnndamental  importance,"  and  no  measures  were  entitled 
vo  consideration  which  denied  or  i,onored  the  supposed  right  of  subjects 
of  Great  Britain  to  carry  on  pelagic  sealing.  Their  understanding  of 
the  question  upon  which  they  were  to  give  an  opinion  was  not  simply 
what  measures  were  necessary  to  preserve  the  seals  fro  m  extermination 
but  what  were  the  measures  most  effective  to  that  end  which  could  be 
devised  consistently  loith  a  supposed  right  on  the  part  of  nations  generally 
to  carry  on  pelagic  scaling.  It  is  not  surprising  that  no  agreement  <;ould 
be  reached.  There  was  a  radical  diiTerence  of  opinion  between  the  Com- 
missioners in  respect  to  their  functions.  According  to  the  views  of  the 
United  States  Commissioners,  a  question  mainly  scientific  was  sub- 
mitted to  them;  but  their  associates  on  the  part  of  Great  Britain 
thought  that  legal  and  political  questions  were  also  submitted,  or,  if 
not  submitted,  that  they  were  bound  to  act  upon  the  view  that  the 
range  of  their  scientific  inquiry  was  bounded  and  limited  by  assump- 
tions which  they  were  required  to  make  respecting  international  rights; 
in  other  words,  their  functions  were  not  those  of  scientific  seekers  for 
the  truth,  but  diplomatic  agents,  intrusted  with  national  interests,  and 
charged  with  the  duty  of  making  the  best  agreement  they  could  con- 
sistently with  those  interests. 


'i&W.,  pp.  316-318. 


II 


74 


AIlGr:MENT    OF   THE    UNITED    STATES. 


It  fiPPvnH  very  clear  that  this  coiicpption  of  thoii-  ]iowors  aitd  functions 
was  -wljolly  erroneous.  There  were  difterences  between  (xreat  Britain 
and  the  'Jnited.  States  respectinf?  the  subject  of  pelagic  seal  hiinting  • 
but  both  nations  were  agreed  that  it  was  extremely  desirable  that  the 
capture  «>t  seals  should  be  mt  regulated,  if  possible,  as  to  prevent  the 
extermination  of  the  species.  It  was  extremely  desirable  to  both 
parties  t<>  know  one  thing,  and  thirt  was,  whether  any,  and  if  any, 
what  laeaanres  were  necesamry  in  order  to  prevent  this  threatened 
exteniL.nation.  This  was  a  mainlip- scientific  question ;  but  whether  the 
mexujunes  which  might  be  found  to  be  thus  necessary  could  be  acceded 
to  by  boti  parties  to  the  (jontroversy  was  (|uite  another  question,  the 
decision  o'  which  was  lodged  with  the  political  representatives  of  the 
res|)ectrve  governments.  If  they  should  be  prepared  to  accede  to  them, 
all  difficuii,,.  W(tuld  be  removed.  If  they  should  not  be  able  to  agree,  a 
trirninal  was  provided  with  power  to  determine  what  should  be  done, 
and  the  reports  of  the  Commissioners  were  to  be  laid  before  it  for  its 
instruction. 

Such  beingfhe  view  which  the  Commissioners  of  Great  Britain  took 
of  their  own  fimcttions,  therr  report  should  be  regarded  as  partaking  of 
the  same  charsbct^r,  and  s'lch  it  appears  to  be  upon  inspection,  Ihere 
is  in  no  part  <'r  it  any  purpose  discernible  to  discover  and  reveal  the 
true  cause  wh.yh  is  operating  to  diminish  the  number;  of  the  fur-seal, 
and  to  indicatfi-  the  remedy,  if  any,  which  science  points  ont.  It  is  ap- 
parent throughflut  the  report  that  its  authors  conceived  themselves  to 
be  charged  with  the  defense  of  the  Canadian  interest  in  pelagic  sealing; 
and  it  consequently  openly  exhibits  the  character  of  a  labored  apology 
for  that  interest,  particularly  designed  to  minimize  its  destructive  tend- 
ency, and  to  support  a  claim  for  its  (iontinued  prosecution.  This  being 
iia  distinguishing  feature,  it  is,  with  great  respeitt,  submitted  that  any 
weight  to  bo  allowed  to  it  as  evidence  should  be  confined  to  the  state- 
ments of  facti>  which  fell  under  the  observation  of  its  authors;  that 
these  should  be  regarded  as  the  utt.  ranees  of  unimpeachable  witnesses 
of  the  highest  character,  testify  ug,  however,  under  a  strong  bias;  and 
that  the  opinions  atid  reasonings  set  forth  in  it  sliould  be  treated  with 
the  attention  which  is  usually  accorded  to  the  arguments  of  counsel, 
but  as  having  no  value  whatever  as  evidenct. 

In  thus  p:  'li'iDg  out  the  general  character  of  the  Report  of  the  Com 
missioners  ..  Great  Britain,  no  reflection  is  int.*'  ded  upon  its  authors. 
Similar  observatious  would  be  applicable  tu  the  Report  of  the  Umted 


rRorcuTY  IX  the  alaskan  seal  iieud. 


75 


Stiites  Commissioners  had  they  taken  the  same  view  of  their  functions. 
Their  conception,  however,  of  the  duties  imposed  upon  them  was  widely 
different.  They  regard«!d  themselves  as  called  upon  simply  to  ascertain 
the  truth,  whatever  it  mifj^ht  be,  concerninj?  "'seal  life  in  Behring  Sea 
.lud  the  measures  necessary  for  its  jjroper  i»rotection  and  preservation." 
This  seemed  to  them  essentially  a  scientiflc  inquiry,  and  not  to  embrace 
any  consideration  of  national  rights,  or  of  the  freedom  of  the  seas — a 
class  of  questions  which  they  would  probably  have  deemed  themselves 
ill  qualified  to  solve.  They  are  not,  indeed,  to  be  presumed  to  be  less 
interested  in  behalf  of  their  own  nation  than  their  associates  on  the  side 
of  Great  Britain;  but  as  they  did  not  conceive  themselves  charged  with 
the  duty  of  protecting  a  sui^posed  national  interest,  they  could  remem- 
ber that  science  has  no  native  country,  and  that  they  could  not  defend 
themselves,  either  in  their  own  eyes,  or  before  their  fellows  of  the  scien- 
tific world,  if  they  had  allowed  the  temptations  of  patriotism  to  swerve 
them  from  the  interests  of  truth.  Their  report  is  earn  estly  recommended 
to  the  attention  of  the  IMbunal  as  containing  a  statement  of  all  the 
material  facts  relating  to  seal  life,  uncolored  by  national  interest,  and 
clearly  presenting  the  scientific  conclusions  which  those  facts  compel. 
From  the  evidence  classified  as  above,  which  may  be  regarded  as 
being  before  the  Tribunal,  we  now  proceed  to  collect  the  principal  fiu^ts 
relating  to  seal  life,  and  the  methods  by  which  the  animal  is  pursued 
and  captured,  so  far  as  those  facts  are  material  in  the  iufjuiry  whether 
the  United  States  have  the  property  interest  asserted  by  them.  For  the 
principal  facts  of  seal  lite  we  borrow  the  statement  contained  in  the  FB- 
port  of  the  United  States  Commissioners. 


PEINOIPAL  FACTS  IN  THE  LIFE  HISTORY  OF  THE  FUR  SEAL. 

1.  The  Northern  fur  seal  {CallorJdnus  ursinus)  is  an  inhabitant  of 
Bering  Sea  and  the  Sea  of  Okhotsk,  where  it  breeds  on  rocky  islands. 
Only  tour  breeding  colonies  are  known,  namely,  (1)  on  the  Pribilof 
Islands,  belonging  to  the  United  States:  (2)  on  the  Commander  Islands, 
belonging  toliussia;  (3)  on  Robben  Kecf,  belonging  to  Kussia;  and  (4) 
on  the  Kurile  Islands,  belonging  to  Japan.  The  Pribilof  and  Com- 
mander Islands  are  in  Bering  Sea;  Robben  Ktef  is  in  the  Sea  of 
Okhotsk,  near  the  island  of  Siighaiien,  and  the  Kurile  Island  save  be- 
tween Yezo  atid  Kamchatka.  The  spe<;ies  is  not  known  to  breed  in 
any  other  part  of  the  world.  The  fur-seals  of  Lobos  Island  and  the 
south  seas,  and  also  tl»oseof  the  Galapagos  Isiands  and  the  islands  off 
h)wer  California,  belong  to  widely  different  species,  and  are  nhiced  in 
diii'ercnt  genera  from  the  Northern  fur-sciil. 

2.  In  si'inter  the  fur-seals  migrate  into  the  North  Pacific  Ocean.  The 
herds  from  the  Commander  Islands,  Robben  Reef,  and  flie,  Kurile 
Islands  move  south  along  the  Japan  coast,  while  the  herd  belonijing  to 


T6 


ARGUMENT   OF    THE    UNITED   STATES. 


1 


Lii 


'  4 


, 


the  Pribilof  Islands  leaves  Bering  Sea  by  tbe  eastern  passes  of  the 
Aleutian  chain. 

3.  Tbe  fur-seals  of  tbe  Pribilof  Islands  do  not  mix  with  those  <.f  tbe 
Commander  and  Kurile  Islands  at  any  time  of  the  year.  In  summer 
the  two  herds  remain  entirely  distinct,  separated  by  a  water  interval 
of  several  hundred  miles;  and  in  their -winter  migrations  those  from  the 
Pribilof  Islands  follow  tbe  American  coast  in  a  s(mtlienaterly  direction, 
while  those  from  the  Commander  and  Kurile  Islands  follow  the  Siberian 
and  Japan  coasts  in  a  southwesterly  direction,  the  two  herds  being 
seftarated  in  winter  b\  a  water  interval  of  several  thousand  miles. 

This  regularity  in  the  movements  of  the  different  herds  is  in  obedi- 
ence to  tbe  well-known  law  that  migratory  animals  follow  definite  routes 
in  migration,  and  rrlurn  year  after  year  to  the  same  plaoes  to  breed. 
Were  it  not  for  this  law.  there  would  be  no  such  thing  as  stability  of 
species,  for  interbreeding  and  existence  under  diverse  physiographic 
conditions  would  destroy  all  speciti         r^acters.' 

The  pelage  of  the  Pribilof  fur-seai.  -.i  rfers  so  markedly  from  that  of 
the  Commander  Islands  fur-seals  that  the  two  are  readily  distinguished 
by  experts,  and  have  very  different  values,  the  former  commanding 
iiiuch  higher  prices  than  the  latter  at  the  regular  London  sales. 

4.  The  old  breeding  males  of  the  Pribilof  herd  are  not  known  to  range 
much  south  of  the  Aleutian  Islands,  but  the  females  and  young  appear 
along  the  Aniericati  coast  as  far  s«juth  as  northern  California.  lieturn- 
ing,  the  herds  of  females  move  northward  along  tbe  coasts  of  Oregon, 
Washington,  and  British  Columbia  in  January,  February,  and  March, 
occurring  at  varying  distances  from  shore.  Fol  lowing  the  Alaska  coast 
northward  and  westward,  they  leave  the  North  Pacific  Ocean  in  June, 
traverse  the  eastern  passes  in  the  Aleutian  chain,  and  proceed  at  once 
to  the  Pribilof  Islands. 

5.  The  old  (breeding)  males  reach  the  islands  much  earlier,  the  first 
coming  tbe  last  week  in  April  or  early  in  May.  Tbey  at  once  land  and 
take  stands  on  the  rookeries,  where  they  await  the  arrival  of  the  fe- 
males. Each  male  (called  a  bull)  selects  a  large  rock,  on  or  near 
which  be  remains  until  August,  unless  driven  off  by  stronger  bulls, 
never  leaving  for  a  single  instant,  night  or  day,  and  taking  neither 
food  nor  water.  Both  before  p^nd  tor  sometime  after  the  arrival  of  the 
females  (called  cows)  the  bulls  fight  savagely  among  themselves  for 
positions  on  the  rookeries  and  for  possession  of  the  cows,  and  many 
are  severely  Avounded.    All  the  bulls  are  located  by  June  20. 

(>.  Tbe  bachelor  seals  (hoUuschickie)  begin  to  arrive  early  in  May, 
and  large  numbers  are  on  the  hauling  grounds  by  the  end  of  May  or 
first  week  of  June.  They  begin  to  leave  the  islands  in  November,  but 
many  remain  into  Deceniber  or  January,  and  sometimes  into  February. 

7.  The  cows  begin  arriving  early  iu  June,  and  soon  appear  in  large 
schools  or  droves,  immense  numbers  taking  their  places  on  the  rook- 
eries each  day  between  the  middle  and  end  of  the  month,  the  precise 
dates  varying  with  the  neather.  They  assemble  about  the  old  bulls  in 
compact  groups,  called  harems.    The  harems  are  complete  early  in  J  uly. 


It 


'  The  botae  of  a  species  is  tbe  area  over  which  it  breeds.  It  is  well  known  to  uat- 
uruhsts  that  migivitory  auiuials,  whether  niatumalH,  birds,  fislies,  ornienibers  of  other 
groups,  leave  their  liomos  for  a  part  of  the  year  because  the  climatic  conditions  or 
the  food  supply  bocorao  uiiciaited  to  their  uoods ;  and  that  wherever  the  home  of  a  spe- 
cio«  is  80  situated  as  to  provide  a  suitable  climate  and  food  supply  throughout  the 
year,  suob  species  do  not  mi;rr»te.  This  is  the  explanation  of  the  fact  that  the 
northern  fur-seals  are  migrarita,  whiie  the  f  iir-aeals  of  tropical  aud  warm  ttsmperate 
latitudes  do  not  migrat«. 


1   1 


PROPERTY    IN   THE   ALASKAN    SEAL    HERD. 


77 


at  which  time  the  breeding  rookeries  attain  their  maximum  size  and 
compactneas. 

8.  The  cowH  give  birth  to  their  young  soon  after  taking  their  phvces 
on  the  harems,  in  the  latter  part  of  June  and  in  July,  but  a  few  are  de- 
layed until  August.  The  period  of  gestation  is  between  eleven  and 
twelve  months. 

9.  A  single  young  is  born  in  each  instance.  The  young  at  birth  are 
about  equally  divided  as  to  sex. 

10.  The  act  of  nursing  is  i)erformed  on  land,  never  in  tlie  waterl  It 
is  necessary,  therefore,  lor  the  cows  to  reutain  at  the  islands  until  tl»e 
young  are  weaned,  which  is  not  until  they  are  four  or  live  montlis  old. 
Each  mother  knows  her  (,wn  pup,  and  will  not  permit  any  otlier  to 
nurs<'  This  is  the  reason  so  many  thousand  pups  starve  to  deatli  on 
the  rookeries  when  their  mothers  are  kiUed  at  sea.  VV^e  liave  repeatedly 
seen  nursing  cows  come  out  of  the  water  and  search  for  theii  young, 
often  traveling  considerable  distances  and  visiting  group  after  group 
of  pups  before  finding  their  own.  On  reaching  an  assemblage  of  pui)8, 
some  of  which  are  awake  and  others  asleej),  she  rapidly  moves  about 
among  them,  sniffing  at  each,  and  then  galloiis  off  to  the  next.  Those 
that  are  awake  advance  toward  her,  with  the  evident  pnrposeof  nursing, 
but  she  repels  them  with  a  snarl  and  passes  on.  Wlun  she  imds  her 
own,  she  fondles  it  a  moineut,  turns  partly  over  on  her  side  so  as  to 
present  her  nipples,  and  it  pronjptiy  begins  to  suck.  In  one  instance 
we  saw  a  mother  carry  her  pup  back  a  distance  of  fifteen  meters  (50 
feet)  before  allowing  it  to  nurse.  It  is  said  that  the  cows  sometimes 
recognize  their  young  by  their  cry,  a  sort  of  bleat. 

11.  Soon  after  birth  the  pups  move  away  from  the  harems  and  hud- 
dle together  in  small  grou]>s,  called  '•  pods,"  along  the  borders  of  the 
breeding  rookeries  and  at  soiie  distance  from  the  water.  The  small 
groups  gradually  u:iite  to  form  larger  groups,  whicli  move  slowly  down 
t4)  the  waters  edge.  When  six  or  eight  weeks  old  the  pups  begin  to  learn 
to  >'',wim.  Not  only  are  the  young  not  born  at  sea,  but  if  soon  after 
birth  they  are  washed  into  the  sea  they  are  drowned. 

12.  The  fur-seal  is  polygamous,  and  the  male  is  at  least  live  tin»es  as 
large  as  the  female.  As  a  rule  each  male  serves  abt)ut  lifteen  or  twenty 
lemales,  but  in  some  cases  as  numy  as  iifty  or  more. 

13.  The  act  of  copulation  takes  i)lace  on  land,  atid  lasts  from  five  to 
ten  minutes.  Most  of  the  cows  are  served  by  the  middle  of  July,  or 
soon  after  the  birth  of  their  pni)s.  They  then  take  tiie  water,  and 
come  and  go  for  food  while  nui'sing. 

14.  Many  young  bulls  succeed  in  securing  a  few  cows  behind  or 
away  from  the  breeding  harems,  particularly  late  in  the  season  (after 
the  middle  of  July,  at  which  time  tlie  regular  harems  begin  to  break 
up).  It  is  almost  certain  that  many,  if  not  most,  of  the  young  cows 
are  served  for  the  first  time  by  these  young  bulls,  either  on  the  haul- 
ing grounds  or  along  the  water  front. 

These  bulls  may  be  distinguished  at  a  glance  from  those  on  the  reg- 
ular harems  by  the  circumstance  that  they  are  fat  and  in  excellent  con- 
dition, while  those  that  have  fasted  for  three  months  on  the  breeding 
rookeries  are  much  emaciated  and  exhausted.  The  young  bulls,  even 
when  they  have  succmmUhI  in  capturing  a  number  of  cows,  can  be 
driven  from  their  stands  with  little  difficulty,  while  (as  is  well  known) 
the  old  bulls  on  the  harems  will  die  in  their  tracks  rather  than  leave. 

15.  The  cows  are  believcl  to  take  the  buU  first  when  two  years  old, 
and  deliver  I  heir  first  ])up  when  three  years  old. 

lU.  liulls  first  take  stands  on  the  breed!  ng  rookeries  when  six  or  seven 


11 1 


78 


ARGUMENT    OF   THE    UNITED    STATES. 


!  I 


^ 


li. 


years  old.    Bei'ont  tliis  they  are  not  powerful  enough  to  fight  the  older 
bulls  for  ]>()siti<»iis  on  tiie  harems, 

17.  CowH,  Avhen  Tiursiiiff,  regularly  travel  long  distances  to  feed. 
They  are  frequently  lound  100  or  150  miles  from  the  islands,  and  some- 
times at  greater  distances. 

18.  The  food  of  the  fur-seal  consists  of  fish,  squids,  crustaceans,  and 
probably  other  forma  of  marine  life  also.     (See  Appendix  E.) 

19.  The  great  majority  of  cows,  pups,  and  such  of  the  breeding  bulls 
as  have  not  already  gone,  leave  tlie  islands  about  the  middle  of  Novem- 
ber, the  date  vai  ying  considerably  with  the  season. 

20.  Part  of  the  noubreeding  male  seals  (holluschickie),  together  with 
».  few  old  bulls,  remain  until  January,  and  iu  rare  instances  until  Feb- 
ruary, or  even  later. 

;il.  The  fur-seal  as  a  species  is  present  at  the  Pribilof  Islands  eight 
or  nine  months  of  the  year,  or  from  two-thirds  to  three  fourths  of  the 
time,  and  in  mild  winters  sometimes  during  the  entire  year.  The 
breeding  bulls  arrive  earliest  and  remain  continuously  on  the  islands 
about  four  months;  the  breeding  cows  remain  about  six  months,  and 
part  of  the  nonbreeding  male  seals  about  eight  or  nine  mouths,  and 
Bometimes  throughout  the  entire  year. 

22.  During  the  northward,  migration,  as  has  been  stated,  the  last  of 
the  body  or  herd  of  fur-seals  leave  the  iTorth  Pacific  and  enter  Bering 
Sea  in  the  latter  part  of  June.  A  few  scati;ered  individuals,  however, 
are  seen  daring  the  sumuier  at  various  ixints  along  the  Northwest 
Coast;  the>'e  are  probably  seals  that  were  so  badly  wounded  by  pela- 
gic sealers  that  they  could  not  travel  with  the  rent  of  the  luMd  to  the 
Pribilof  Islands,  it  has  been  alleged  that  young  fur  seals  have  been 
found  in  early  summer  on  several  occasions  along  the  coasts  of  British 
Columbia  and  southeastern  Alaska.  While  no  authentic  case  of  the 
kind  has  come  to  our  notice,  it  would  be  expected  from  the  large  num- 
ber of  cows  thar  are  wounded  each  winter  and  spring  along  these  coasts 
and  are  thereby  rendered  unable  to  reach  the  breeding  rookeries  and 
niusi:  perfoice  give  birth  to  their  young — perhaps  prematurely — wher- 
ever they  may  be  at  the  time. 

23.  The  reason  the  northern  fur-seal  inhabits  the  Pribilof  Islands  to 
the  exclusion  of  all  other  islands  and  coasts  is  that  it  here  finds  the 
climatic  and  physic;!  conditions  necessary  to  its  life  wants.  This  spe- 
cies requires  a  uni:  oimly  low  temperature  and  oveic»st  siy  and  a  foggy 
atmosphere  to  prcAent  the  sun's  rays  from  injuring  it  during  the  long 
summer  season  when  it  reniains  upon  the  rookeries.  It  requires  also 
rocky  beaches  on  which  to  bring  lorth  its  youang.  No  islands  to  the 
nortliward  or  southward  of  the  Pribilof  Islands,  with  the  possible  ex- 
ception of  limited  areas  on  the  Aleutian  chain,  are  known  to  possess 
the  requisite  combination  of  climate  and  physical  con«iitions. 

All  statements  to  the  efl'ect  that  fur-seals  of  this  species  formerly 
bred  on  the  coasts  and  islands  of  California  and  Mexico  are  erroneous, 
the  seals  remaining  there  belonging  to  \ridely  «littV',rent  species. 

In  the  general  discussion  of  th*'  questicra  submitted  to  the  Commis- 
sion it  will  be  convenient  to  consider  the  subject  under  three  heads, 
namely: 

Conditions  of  seal  life  in  the  region  under  consideration  at  the  pres- 
ent time. 

CauHct.  the  operati<«n  of  whi'li  lead  to  existing  conditions. 

Remedks,  which  if  a|)i)lied  would  resu't  in  the  restoration  of  seal  life 
to  it*  normal  st.ite,  and  to  its  continued  preservat  iou  in  that  state. 


PROPERTY    IN    THE    ALASKAN    SEAL    HERD. 


79 


m 


We  make  no  apology  for  adopting  these  statements  of  the  Unitod  States 
Commifjsioners  in  their  own  language.  The  facts  could  hardly  be  more 
l>recisely  expressed,  and  it  is  belie /ed  that  every  jjart  of  tlie  statement 
will  be  accepted  by  the  Tribunal  as  true.  There  is,  indeed,  bnt  little  to 
be  found  even  in  the  report  of  the  Commissioners  of  Great  Britain  in 
the  way  of  direct  contradiction.  In  order,  however,  that  the  Arbitrators 
'.iiay  be  facilitated  in  the  verification  of  any  facts  as  to  which  they 
may  be  in  doubt,  a  brief  discussion  of  the  facts  as  to  which  any  ques- 
tion has  been  made  in  the  Eeport  of  the  British  Commissioners  will  bo 
found  in  Part  Sixth  of  this  Argument  (pp.  228-313). 

There  are  certain  material  propositions  of  fact  which  are  not  wholly 
embrafjed  in  the  above  above  quoted  extract  from  the  Report  of  the  Com- 
missioners of  the  United  States,  although  tliey  are  substantially 
contained  therein,  which  deserve  formal  and  separate  statement. 

First.  In  addition  to  the  climatic  and  physical  conditions  above 
enumerated  as  necessary  to  render  any  place  suitable  for  a  breeding 
ground  for  the  seals,  exemption  from  hostile  attack  or  molestation 
by  man,  or  other  terrestrial  enemies,  should  bo  included.  The  defence- 
loss  con  iition  of  these  animals  upon  the  land  renders  this  security 
indispensable.  If  no  terrestrial  spot  could  be  found  possessing  the 
tavorable  cHmatic  and  physical  requirements  above  mentioned,  and 
which  was  not  at  the  same  time  exempt  from  the  unregulated  and  indis- 
criminate hostility  of  man,  the  race  w^ould  sjjeedily  pass  away. 

Second.  The  mere  presence  of  ma  ?i  jjpon  the  breeding  places  does  not 
repel  the  seals,  nor  operate  unfa^'orably  upon  the  work  of  reproduction. 
On  the  contrary,  presence  and  the  protection  which  he  alone  is 
capable  of  affording,  by  keeping  off  marauders,  are  absolutely  necessary 
to  the  preservation  of  the  species  in  any  considerable  numbers. 


Third.  If  man  invites  the  seals  to  come  upon  their  chosen  resorts, 
abstains  from  slaughtering  them  as  they  arrive,  and  cherishes  the 
breeding  animals  during  their  sojourn,  they  will  as  confidingly  submit 
themselves  to  his  power  as  domestic  animals  are  wont  to  do.  It  then 
becomes  entirely  practicable  to  select  and  separate  from  the  herd  for 
slaughter  such  a  number  of  nonbrecnling  animals  as  may  be  safely 
taken  w^ithout  encroaching  ui>ou  the  poi'maueut  stock. 


^ 


t 


80 


AEGUMENT   OF   TUE    UNITED    STATES. 


Fourth.  If  the  herd  were  exempt  from  any  depredation  by  man,  its 
numbers  would  reach  a  point  of  equilibrium  at  which  the  deficiency  of 
food,  or  other  permanent  conditions,  would  prevent  a  further  increase. 
At  this  point,  the  animsil  being  of  a  polygatnous  nature,  an  annual  draft 
from  nonbreeding  males  might  be  made  by  man  of  100,000 — perhaps 
a  larger  nrmber — without  causing  any  appreciable  permanent  diminu- 
tion of  the  herd. 

Fifth.  Omitting  from  view,  as  being  inconsiderable,  such  killing  of 
seals  as  is  carried  on  by  Indians  in  small  boats  from  the  shore,  there 
are  two  forms  of  capture  at  x)resent  pursued:  That  carried  on  under 
the  authority  of  the  United  States  upon  the  Pribilof  Islands,  and 
that  carried  on  at  sea  by  vessels  with  boats  and  other  appliances. 

Sixth.  The  killing  at  the  Pribilof  Islands  if  confined,  as  i«  entirely 
practicable,  to  a  properly  restricted  numb(u-  of  nou -breeding  males,  and 
if  pelagic  sealing  is  prohibited,  does  not  involve  any  danger  of  the  ex- 
termination of  the  herd,  or  of  appreciable  diminution  in  its  normaJ 
numbers.  It  is  far  less  expensive  than  any  other  mode  of  slaughter, 
and  furnishes  the  skins  to  tlie  markets  of  the  world  in  the  best  condi- 
tion. The  killing  at  these  islands,  since  the  occupation  by  the  United 
States,  has  been  restricted  in  the  manner  above  indicated.  It  has  been 
the  constant  endeavor  of  the  United  States  to  carefully  cherish  the 
seals  and  to  make  no  draft  ex(!ept  from  the  normal  and  regular  increase 
of  the  herd.  If  there  has  at  anytime  been  any  failure  in  carrying  out 
such  intention,  it  has  been  from  some  failure  to  carry  out  instructions, 
or  want  of  knowledge  respecting  the  condition  of  the  heid.  The  United 
Statos  are  under  the  unopposed  influence  of  the  strongest  motive,  that 
of  self-interest,  to  so  deal  with  tlie  herd  as  to  maintain  its  numbers  at 
the  highest  possible  point.  Tlie  annual  draft  made  at  the  islands  since 
the  tHV-upation  of  the  United  States  has  been  until  a  recent  period  about 
UHMKM).  This  draft  would  be  in  no  way  excessive  were  it  the  only  one 
made  ui)ou  the  herd  by  man. 


Seventh.  Pelagic;  sealing  has  three  inseparnblo  incidents: 

(1)  T>K'  killing  van  not  be  ronfined  to  niaU's;  and  such  are  the  greater 

l;*cilities  for  taking  tcuiolcs  that  they  comprise  throe-fourths  t^i"  the 

whole  cii>tuh. 


PROPEKTY    IN    THE    ALASKAN    SEAL    HERD. 


81 


(2)  Many  seals  are  killed,  or  fatally  wounded,  which  arc  not  recovered. 
At  least  oue-tbiirtli  as  many  as  are  recovered  are  thus  lost. 

(3)  A  largo  proportion  of  the  fenuiles  IvHUmI  are  either  heavy  with 
young,  or  have  nursing  pups  on  the  shore.  The  evidence  upon  these 
points  is  fully  discussed  iu  Appendix. 


Eighth.  Pelagic  sealing  is,  therefore,  by  its  nature,  destructive  of  the 
stock.  It  can  not  be  carried  on  at  all  without  encroaching 2'»*t>  tanto 
upon  the  normal  numbers  of  the  herd,  and,  if  prosecuted  to  any  con- 
siderable extent,  will  lead  to  such  an  extermination  as  will  render  the 
seal  uo  longer  a  source  of  utility  to  man. 

Eetnrning  to  the  main  proposition  hereinbefore  established,  that 
some  legal  and  determinate  owner  must  be  assigned  to  all  tangible 
things  which  are  (1)  objects  of  desire,  and  (2)  limittnl  in  supply,  and  (3) 
capable  of  ownership,  the  (piesLion  is,  do  the  Alaskan  fur-seals  exhibit 
these  three  essential  conditions  of  property?  llespocting  the  first  two, 
no  discussion  is  needed.  That  this  animal  is  in  the  highest  degree 
useful  to  man,  and  an  object  of  eager  human  desire,  is  not  questioned, 
and  this  earnest  controversy  is  abundant  proof  of  it.  That  the  sui)ply 
is  limited  and  in  danger  of  being  cut  off  by  the  depredations  of  man  is 
agreed  to  by  the  parties,'  Whatever  difference  there  may  be,  nuist 
and  does  arise  upon  the  question  whether  the  animal  is  susceptible  oj 
ownership.  Doubt  and  difference  are  indeed  possible  here,  and  the  first 
step  in  the  effort  to  remove  them  should  be  to  have  a  clear  understand- 
ing of  the  meaning  of  the  term,  susceptibility  of  ownership.  The  delinition 
whicli  would  natmally  be  iirst  given  is  susceptibility  of  ai)propriation  by 
the  owner  to  bis  own  use  to  the  exclusion  of  all  others.  But  this  does 
not  render  the  whole  language  entirely  intelligible.  We  still  need  to 
know  how  it  is  possible  for  man  to  malce  this  sort  of  axclusive  appro- 
priation to  himself,  What  are  the  acts  which  are  sufficient  to  constitute 
it?  Must  the  thing,  in  order  to  be  thus  appropriated,  bo  actually  in 
manu,  or  otherwise  physically  attached  to  the  person  of  the  owner,  or 
even  within  his  immediate  reach  and  sight,  so  that  he  can  immediately 
assert  his  appropriation  and  forbid  all  intrusion  upon  it? 

It  is  hero  that  the  concei)tion  of  ownership,  as  distinct  fn.m  mere 
possession,  GOiviGS  into   view,  and,  inasmuch  as  it  has  a  close  bearing 


i; 


kl 


'  it 

f  I'l' 
'  if 'I 


t, 


'Joint  Report,  Case  of  the  United  States,  p.  SOD. 

14749 0 


82 


aroumi:nt  <jf  the  united  states. 


I 


upon  the  subject  of  our  di.siMission,  it  should  receive  corresponding  at- 
tention, lu  the  rude  ajjes  of  society  there  was  but  little  occasion  to 
•ussert  a  ri^^ht  of  property  beyond  the  few  necessary  things  which  life 
iciiuired,  and  those  were  mostly  held  in  iniinedinte  possession,  wliich 
could  bo  defended  by  individual  power.  Clothing  was  upon  the  per- 
son, and  the  weapons  for  the  chase,  and  the  few  agiicnltural  itiiple- 
uients  were  within  immediate  reach.  Tlie  stock  of  cattle  and  any 
surplus  stores  of  food  were  the  property  of  the  community  or  tribe.  But, 
upon  the  change  to  private  property,  individuals,  in  pursuance  of  nat- 
ural desires,  would  seek  to  provide  themselves  with  increased  abun- 
dance of  cattle  and  agricultural  products  as  stores  for  the  future.  In 
this  and  manifold  other  ways  there  arose  a  need  for  protection  to  these 
accumulations  when  beyond  the  immediate  possession  of  the  producer. 
If  they  were  taken  by  another,  the  attempt  would  bo  made  to  regain 
them  by  force;  and  the  disposition  to  produce  and  save  would  be  dis- 
couraged by  the  difficulty  and  danger.  The  same  necessities  out  of 
which  property  arose,  namely,  the  peace  and  order  of  society  and  its 
advancement,  forced  a  development  in  the  conception,  and  gave  birth 
to  the  idea  of  ownership  as  distinct  from  and  independent  of  actual 
possession.  Society  came  to  the  aid  of  individual  power,  and  under- 
took to  guaranty  to  the  individual  the  peacieful  enjoyment  of  what  ho 
had  i)roduced  by  stamping  upon  it  his  personality. 

We  thus  perceive  that  the  idea  of  ownership  as  distinct  from  posses- 
gion  is  not  an  original  conception.  It  is  the  product  of  an  evolution  in 
thought,  which  has  accompanied  the  progress  of  man.  An  able  Eng- 
lish writer,  in  the  course  of  an  interesting  ske'xh  of  the  successive 
stages  of  thia  development  observes : 

The  fact  or  institution  of  ownership  is  such  an  indispensable  condi- 
tion to  any  material  or  social  progress  that,  even  throughout  the 
period  during  which  the  attention  of  law  is  concentratxid  upon  family 
and  village  ownership,  the  ownership  on  the  part  of  individual  persons, 
of  those  things  which  are  needed  for  the  sustenance  of  physical  life, 
becomes  increasingly  recognized  as  a  possibility  or  necessity.  One  of 
the  most  important  steps  out  of  savagery  into  civilization  is  marked 
by  tlie  fact  that  the  security  of  tenure  depends  upon  some  further  con- 
dition than  the  mere  circumstance  of  possession. 

The  use  of  the  products  of  the  earth,  and  still  more,  the  manufiic- 
ture  of  them  into  novel  substances,  consists,  generally,  of  continuous 
processes  extending  over  a  length  of  time  during  which  the  watchful 
attention  of  the  Avorker  can  only  be  intermittently  fixed  upon  all  the 
several  points  and  stages.  The  methods  of  agriculture  and  grazing, 
as  v/cll  as  the  simplest  applications  of  the  principle  of  division  of  labor, 
similarly  presupjjosc  the  repeated  absence  of  the  farmer  or  ineclianio 
£i:om  one  i)iU't  of  his  work,  while  he  is  bestowing  uudistracted  toil  upon 


PROPERTY    IN    THE    ALASKAN    SEAL    HERD. 


83 


another  part;  or  else  entire  iibsorptioii  iu  one  class  of  work,  coupled 
with  a  steady  reliance  that  another  class  of  work,  of  c([nal  importance 
to  himself,  is  the  object  of  corresponding  exertion  on  the  part  of  others. 
In  all  these  cases  the  mere  fact  of  jjliysical  hol(liii<;  or  poHscssion,  in 
the  narrowest  sense,  is  no  test  whatever  of  the  interests  or  claims  of 
persons  in  the  things  by  which  they  are  surrounded.' 


'The  Science  of  the  Law,  by  Sheldon  Amos,  Loml.,  1881,  pp.  148,  et  seq.  A  dis- 
tiu|rui8hed  French  Jurist  thns  traces  the  doveiupmeut  of  the  couceptiuu  ot  ownership 
as  distinct  from  possession : 

"Skc.  64.  If  the  laws  attached  to  property  and  those  which  are  derived  from  it  are 
now  very  extensive  it  was  not  thus  originally.  Property  was  confouudod  with  pos- 
session and  it  was  lost  with  it. 

"  Before  the  foundation  of  tlie  civil  state  the  earth  wivs  no  one's ;  the  fruits  belonged 
to  the  firHt  occupant.  The  men  that  were  distributod  over  the  globe  lived  in  a  state 
which  the  writers  who  have  written  on  natural  law  have  termed  negative  com- 
niimity,  in  distinction  from  positive  community,  in  which  several  lussociates  held  in 
common  ownership  an  indivisible  thing  belonging  to  each  in  a  certain  portion. 

•'Negative  community,  on  the  contrary,  consisted  iu  that  the  thing  coumion  to  all 
did  not  belong  more  to  each  one  of  them  in  particular  than  to  the  other,  and  in  that 
no  one  could  prevent  another  from  taking  that  which  he  considered  proper  to  make 
use  of  in  his  needs. 

"This  doctrinal  expression  of  negative  conmiunity  signifies  nothing  else  but  the 
primitive  and  determinate  right  (droit)  that  all  men  had  originally  to  make  use  of 
the  goods  which  their  earth  offered,  as  long  as  no  one  had  yet  taken  i)osaosaion  of 
them. 

"  Sec.  65.  It  is  this  which  is  termed  the  right  of  the  first  occupant.  Ho  who  first 
possosaes  himself  of  a  thing  acquires  over  it  a  kind  of  transient  ownership,  or,  to 
speak  more  exactly,  a  right  of  preference  which  others  should  respect.  They  should 
leave  that  thing  to  him  while  he  possesses  ic;  but,  after  ho  had  ceased  to  make  use  of 
it  or  to  occupy  it,  another  in  his  turn  might  make  use  of  it  or  occupy  it. 

"  If  the  older  possessor  had  invoked  his  past  possesion  as  a  right  of  preference  still 
existing,  the  younger  could  be  able  to  answer  by  his  present  possession;  and  when, 
furthermore,  rights  are  equal  on  both  sides,  it  is  just  and  natunil  that  the  actual 
possessor  should  be  preferred;  for  to  take  possession  away  from  him  there  should  bo 
a  stronger  right  than  his  own. 

"  Thus  the  right  of  occupation  is  a  title  of  legitimate  preference  founded  on  nature. 

"  Skc.  66.  The  existence  of  this  primitive  state  of  negative  community  is  incontest- 
ible;  proofs  of  the  same  are  found  in  Genesis,  the  most  ancient  of  all  books,  and  the 
most  venerable  even  when  considering  it  only  from  an  historical  point  of  view.*  The 
poets,  in  their  picturing  of  the  Golden  Age,  have  left  us  ornamented  works,  but  in- 
accurate ones.  The  ancient  historiana  have  transmitted  to  us  tradition ;  and,  finally, 
examples  thereof  were  found  again  in  the  habits  of  the  savage  tribes  of  America 
when  that  continent  was  discovered, 

"Sec.  67,  Thus,  follovvingacomparisonof  Cicero,  the  world  was  like  a  vast  theater 
belonging  to  the  public,  and  of  which  each  seat  became  the  property  of  tlie  first  oc- 
cupant as  long  as  it  suited  him  to  remain  ^kerein,  but  which  he  could  not  prevent 
auothcr  from  occupying  after  ho  had  left  it. 

"Skc.  68.  But  how  could  this  preference  acquired  by  occupation  have  become  a  sta- 
ble and  permanent  ownership,  that  would  continue  to  subsist  and  could  be  reclaimed 
after  the  first  occupant  had  ceased  to  be  in  possession! 

"It  \as  agriculture  that  gave  biitb  to  the  idea  of  and  made  felt  its  necessity  for 
permanent  property.    In  measure  as  the  number  of  men  increased,  it  became  more 


urn 


Hjii' 


di;-"' 


'il! 


'!]• 

.;J|'j.i 

M 

'  Genesis,  I,  28  and  29. 


-*^ 


84 


ARGUMENT   OF    THE    UNITED    STATES. 


. 


13  'i 
II  'i 


The  range  of  thought  by  which  the  rights  of  ownership  are  limited 
to  a  clear  physical  possession  is  cliaractcristic  of  the  barbaric  age.  The 
first  advances  beyond  it  are  i)ronioted  and  accompanied  by  the  begin- 
nings of  the  concoptiou  of  ownership  as  distinct  from  possession,  and 
the  full  development  of  that  conception  is  the  condition  and  accompa- 
niment of  the  advan(;ed  stages  of  civilization.  Its  fluid  expression  is 
in  the  main  proposition  which  stands  at  the  basis  of  our  argument, 
and  was  laid  down  at  the  beginning,  namely,  that  every  useful  thing 
the  supply  of  which  is  limited  should  be  the  property  of  a  determinate 
owner,  i)rovided  it  is  susceptible  of  exclusive  ai)propriation.  "Witli 
those  things  which  are  capable  of  actual  possession  at  all  times  there 
is  no  difficulty.  The  right  of  property  once  established  by  possession 
continues,  but  in  the  case  of  those  things  not  thus  capable  the  law 

difficult  to  find  new  nninhabitod  lands;  and  on  tLe  other  hand  continued  habitation 
of  the  saino  place  enpeudorod  a  too  rapid  consumption  of  the  natural  fruits  of  the 
earth  for  them  to  suffice  for  the  subsistence  of  all  the  inluibitants  and  of  their  flocksi 
without  changing  locality,  or  without  providing  therefor  by  cultivation  iu  a  con- 
stant and  regular  manner. 

"Thus  agriculture  was  the  natural  result  of  the  increase  of  the  hitman  species; 
agriculture  in  turn  favored  population,  and  rendered  necessiiry  the  establishment  of 
permanent  property.  For  who  would  give  himself  the  trouble  to  labor  and  to  sow, 
if  he  had  not  the  certainty  of  reaping  t 

"The  field  that  I  have  cleared  and  sown  should  belong  to  me  at  least  until  1  have 
gathered  the  fruits  that  my  labor  has  produced.  I  have  the  right  to  employ  force  to 
repulse  the  unjust  person  who  would  wish  to  dispossess  me  of  it  and  to  drive  away 
him  who  should  have  seized  it  during  my  absence,  I  am  regarded  as  continuing  to 
occupy  the  iield  from  the  first  tilth  to  the  harvest,  though,  in  the  interval,  I  do  not 
perform  each  moment  exterior  acts  of  occupation  or  of  possesbioii,  because  one  can- 
not suppose  that  I  have  cleared,  cultivated,  .and  sown  without  intention  to  reap. 

"Sec.  69.  This  habitual  occupation,  which  results  from  cultivation,  preserves  there- 
fore the  right  of  preference  which  I  had  acquired  by  first  occupation.  It  is  this  habitual 
occupation  which  civil  law  (le  droit  civil)  extended  and  applied  as  a  means  of  pre- 
serving possession,  in  establishing  as  a  maxim  that  possession  is  preserved  by  sole 
intention,  nudo  animo. 

"  Cultivation  forms  a  stronger  and  more  lasting  tie  than  single  occupation ;  it  gives 
a  perfect  right  to  the  harvest.  But  how  maintain  a  right  (droit)  other  than  by 
doubtful  contest  before  the  foundation  of  the  civil  state t 

"  Sec.  70.  Moreover  the  right  which  cultivation  gives  and  the  effects  of  occupation 
which  are  derived  therefrom  cease  with  the  harvest  if  there  are  no  new  acts  of  cul- 
tivation; for  nothing  would  further  indicate  an  intention  to  occupy.  The  field 
which  would  cease  to  be  cultivated  would  again  become  vacant  and  subject  to  the 
right  of  the  first  occupant. 

"Agriculture  alone,  thorefore,  was  not  sufTicient  to  establish  permanent  property; 
and  since  as  before  the  invention  and  the  usage  of  agriculture,  property  was  acquired 
by  occupation,  was  preserved  by  continued  or  habitual  possession,  and  was  lost  with 
possession.  This  principle  is  still  fcdlowed  in  regard  to  things  which  have  remained 
in  the  primitive  state  or  negative  community,  such  ns  savage  animals. 

"  Sac.  71.  In  order  to  give  to  property  a  nature  of  stability  which  wo  observed  in 


PROPERTY    IN   THE    Af-ASKAX    SEAT.    HERD. 


85 


fl(»os  not  loTifl  its  aid  to  rciiiCorco  tlio  imperfect  possession  unless  the 
groiit  purposes  of  human  society  require  it. 

Thiit  it  will  lend  its  aid  to  the  utmost  extent  when  necessary  in  order 
to  attain  its  own  great  purposes  is  made  manifest  by  the  tendency  of 
the  advan(!ing  civilization  of  the  present  age  to  award  a  rijjht  of  i)rop- 
crty  in  the  products  of  the  mind,  which  are  wholly  intangible  and  not 
the  subject  of  possession  in  any  form,  and  to  extend  the  right,  not  only 
by  municipal  law  throughout  the  territories  of  particular  states,  but 
beyond  their  boundaries  by  the  means  of  an  international  recognition. 
This  right,  fully  defended  by  natural  law,  and  long  established  in  re- 
spect of  useful  inventions  in  the  arts,  has  been  for  years  pressing  for 
recognition  in  respect  to  all  the  products  of  tlio  mind  and  throughout 
the  world.  Its  inherent  moral  force  has  secured  a  certain  measure  of 
obedience  without  the  aid  which  is  furnished  by  judicial  tribunals,  and 


it  to-day,  popitive  laws  and  magistrates  to  execute  them  were  necessary;  in  other 
•words,  the  civil  state  was  required. 

"Tlie  increase  of  tlie  human  species  had  rendered  aprriculinre  necessary;  the  need 
no  assure  to  tlie  cultivator  tlie  fruits  oT  his  labor  made  felt  the  necessity  of  perma- 
tent  property  and  of  laws  to  protect  them.  Thus,  it  is  to  property  that  wc  owe  the 
foundation  of  the  civil  state.  Without  the  tie  of  property  it  would  never  have  been 
possible  to  subject  man  to  the  salutary  yoke  of  the  law ;  and  without  permanent 
projierty  the  earth  would  have  continued  to  remain  a  vast  forest. 

"  Let  us  say,  therefore,  with  the  most  exact  writers,  that  if  transient  ownership 
or  the  right  of  preference  with  occupation  gives,  is  anterior  to  the  foundation  of 
civil  society,  permanent  ownership,  as  we  know  it  lo-day,  is  the  work  of  civil  law. 

It  is  civil  law  which  has  est!ililishi>d  rs  a  rnaxim  that  once  acquired  pro]ierty  is 
never  lost  without  the  act  of  the  owner,  and  that  it  is  preserved  even  after  the 
owner  has  lost  possession  or  detention  of  the  thing,  and  when  it  is  in  the  hands  of 
a  third  party. 

Thus  property  and  possession,  which  in  theprimitive  state  were  confounded,  be- 
came by  the  civil  law  two  distinct  and  independent  things;  two  things  which, 
according  to  the  language  of  the  laws,  have  nothing  in  common  between  them. 
Property  is  a  right,  a  legal  attribute;  possession  is  a  fact. 

It  is  seen  by  this  what  prodigious  cliauges  have  been  wrought  in  property,  and 
how  much  civil  laws  have  changed  its  nature. 

Sec.  72,  This  change  was  effected  by  means  of  real  action  that  the  laws  granted 
against  the  possessor  whoever  he  might  be,  to  compel  him  to  surrender  the  tbing 
to  the  owner  who  had  lost  possession  thereof.  This  action  was  granted  to  the  owner 
not  alone  ag.ainst  the  possessor  in  bad  faith,  but  also  against  the  posst'ssor  in  good 
faith,  to  whom  the  thing  had  come  without  fraud  or  without  violence,  without  his 
being  cognizant  of  the  owner's  rights,  and  even  though  he  had  acquired  it  from  a 
third  party  by  virtue  of  a  legal  title. 

Skc.  73.  Property  was,  therefore,  considered  a  moral  quality  inherent  in  the  thing, 
as  a  real  tie  which  biuds  it  to  the  owner,  and  which  can  not  be  severed  without  an 
net  of  his. 

This  right  of  reclaiming  a  thing  in  whatever  hands  it  is  found  is  that  which  forms 
the  principal  and  distinctive  characteristic  of  property  in  the  civil  state.  (Tcuilier 
French  Civil  Law,  Paris,  1812,  5th  ed.,  vol.  3,  tit.  2,  oh.  1.) 


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Sciences 
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23  WEST  MAIN  STREET 

WEBSTER,  N.Y.  US80 

(716)872-4503 


I 


:\ 


\ 


86 


ARGUMENT   OF   THE   UNITED   STATES. 


II 


i  1 


its  complete  establishment  by  the  instrnmentality  of  formal  inter- 
national copyright  laws  is  impatiently  awaited. 

These  considerations  lead  up  to  the  particular  problem  upon  which 
we  are  engaged,  namely,  what  is  capability  of  otcnership,  that  is  to  say, 
under  what  circumstances,  and  to  what  extent,  will  and  does  society 
step  in  and  aid  the  infirmity  of  individual  power  by  stamping  the  char- 
acter of  ownership  upon  things  which  are  out  of  the  actual  possession 
and  away  from  the  presence  of  the  owner  T  The  general  answer  is  ob- 
vious; it  will  do  this  whenever  social  necessities  require,  and  to  the 
extent  to  which  they  require  it.  And  this  answer  is  best  justified  by 
pointing  out  what  society,  through  the  instrumentality  of  the  law,  uni- 
versally does.    We  may  first  look  to  the  instance  of  land. 

In  respect  to  the  earth  itself,  society  will  recognize  no  title  which  is 
not  directly,  or  indirectly,  acquired  from  itself.  No  man  is  permitted  to 
assert  in  respect  to  uninhabited  countries,  or  countries  inhabited  only 
by  savages,  a  private  title.  But  nations  may  assert  a  title  thereto,  al- 
though there  is  a  limit  to  such  assertion.  No  nation  can  assert  an 
ownership  over  such  lands  to  an  extent  greater  than  it  can  reasonably 
occupy  and  improve.  The  limit  is  found  in  that  principle  of  the  law  of 
nature  which  declares  that  the  earth  was  made  for  mankind,  and  in 
order  to  enable  the  human  race  to  carry  out  its  destiny,  and  that  to 
this  end  civilized  nations  may  supplant  barbarous  ones;  but  that  every 
nation  in  thus  appropriating  to  itself  the  waste  places  of  the  earth, 
must  not  take  from  others  what  it  can  not  itself  improve  and  apply  to 
the  great  destiny  for  which  in  the  order  of  nature  it  has  been  given. 

In  respect  to  individual  ownership  of  lands,  the  state  will  recognize 
and  maintain  private  titles  to  such  lands  as  it  chooses  to  give.  Some, 
times,  as  we  have  already  shown,  in  early  and  rude  social  conditions, 
it  prefers  to  give  nothing,  but  to  retain  the  ownership  in  itself.  In 
general,  however,  civilized  societies  permit  and  encou  age  the  acquisi- 
tion of  lands  by  individuals  and  place  no  limits  upon  the  extent  of  ac- 
quisition. Society  acts  upon  the  assumption,  for  tha  most  part  undoubt- 
edly correct,  that  under  individual  ownership  its  territories  will  bo  best 
improved  and  turned  to  the  purposes  intended  by.  nature.  That  the 
underlying  motive  upon  which  society  acts  is  the  intention  that  the 
soil  should  be  devoted  to  those  purposes  to  which  the  law  of  nature 
dictates  that  it  should  be  applied,  is  well  manifested  by  the  circum- 
stance that,  where  the  action  of  the  private  proprietors  tends  to  count- 
eract this  policy,  the  state  is  often  moved  to  revoke  its  gifts,  and  make 


PROPERTY   IN   THE   ALASKAN   SEAL   UERD. 


8^ 


lal  inter- 
on  which 
is  to  say, 
>8  society 
the  char- 
toBsession 
vrer  is  ob- 
id  to  the 
stifled  by 
law,  oni- 

i  which  is 
>mitted  to 
)ited  only 
lereto,  al* 
issert  an 
iasonably 
he  law  of 
Id,  and  in 
d  that  to 
hat  every 
the  earth, 

I  apply  to 
given. 

recognize 
B.  Some, 
editions, 
t«e]f.  In 
e  acquisi- 
ient  of  ac- 
undoubt- 

II  be  best 
That  the 
that  the 

)f  nature 
>  circam- 
to  count- 
ind  make 


a  new  disposition  of  its  lands  in  harmony  with  natural  law.  This 
tendency  is  observable  where  great  proprietors  reserve  large  tracts  of 
land  for  game  preserves,  for  the  purposes  of  mere  pleasure,  or  hold 
them  under  a  system  of  rental  unfavorable  to  agricultural  improvement, 
and  not  adapted  to  supply  the  wants  of  an  increasing  population.  The 
recent  legislation  of  Great  Britain  in  respect  to  Ireland  is  a  notable 
instance  of  an  assertion  by  the  State  of  that  supreme  dominion  over  itB 
lands  which  a  ntttion  always  retains,  to  the  end  that  they  may  be  made 
the  more  subservient  to  the  purposes  for  which  the  eartli  was  destined. 

From  what  has  just  been  said  it  is  apparent  that  land,  although  no 
individual  can  actually  appropriate  more  than  a  very  small  area  to  his 
exclusive  use,  is  nevertheless  regarded  in  the  law  as  msceptible  of  ex- 
cltisive  appropriation.  The  state  permits  its  citizens  to  assert  title  to 
it  to  an  unhinited  extent,  and  the  assertion  may  be  made  without  even 
any  formal  physical  act  of  possession.  ISo  fences  or  inclosures  even 
are  necessary.  The  execution  of  an  instrument  in  writing  is  of  itself 
sufficient.  The  law  steps  in  to  aid  individual  power  and  enables  a 
private  person  to  hold  title  to  a  province  as  securely  as  he  holds  the 
harvests  he  reaps  from  his  fields  with  his  own  hands. 

And  the  reason  is  immediately  obvious.  It  is  only  by  the  award  of 
property  that  the  earth  will  be  cultivated.  ISo  man  will  sow  that  another 
may  reap;  but  if  the  law  will  lend  its  aid  to  human  jwwer  by  protect- 
ing the  owner  of  land  in  his  exclusive  enjoyment  of  it,  he  can  and  will 
draw  from  it  by  his  art  and  industry  its  annual  product  without  im- 
pairing its  capacity  for  production,  and  will  even  increase  that  capacity. 
This  is  the  only  way  in  which  an  increased  population  can  be  sup- 
ported. Social  necessity,  therefore,  requires  that  land  should  be  deemed 
susceptible  of  exclusive  appropriation,  and  all  structures  affixed  to  the 
land  become  a  part  of  it  and  are  property  together  with  it. 

In  respect  to  such  movable  things  <as  are  the  fruits  of  the  land  or  the 
products  of  industry,  there  is  no  limit  to  the  assertion  of  ownership, 
and  the  circumstance  of  actual  possession  is  absolutely  immaterial.  The 
fruits  of  the  cultivation  of  the  earth  must,  of  course,  be  the  proi)erty  of 
the  husbandman,  else  liis  title  to  the  soil  would  be  unavailing,  and, 
in  respect  to  all  other  products  of  industry,  the  same  social  necessity 
protects  them  as  property.  But  for  sucli  protection  they  would  not  be 
produced,  except  for  the  personal  use  of  the  workman.  The  various 
arts  may  be  said  to  be  su'  lidiary  to  the  better  cultivation  of  the  earth, 
for  it  is  these  which  enable  the  cultivators  to  devote  their  exclusive 
attention  to  it. 


88 


ARGUMENT   OF   THE    UNITED    STATES. 


All  tlie  vseful  domestic  animaU  are  held  to  be  the  subjects  of  exclu- 
sive appropriation,  however  widely  tliey  may  wander  from  their  mas- 
ters. A  man  may  assert  his  title  to  vast  herds,  which  roam  over  bound- 
less wastes,  and  which  he  may  not  e\en  see  for  months  in  succession,  as 
easily  as  to  the  cattle  which  are  nightly  driven  to  his  home.  He  has 
no  proper  possession  of  them  other  than  that  which  the  law  supplies  by 
the  title  which  it  stamps  upon  t'nem.  And  the  obvious  reason  is  that 
from  their  nature  and  habits  he  has  such  a  control  over  them  as  enables 
him,  if  the  law  will  lend  him  its  aid,  to  breed  them,  in  other  words,  to 
cultivate  them,  and  furnish  the  annual  increase  for  the  supply  of  human 
wants,  and  at  the  same  time  to  preserve  the  stock.  In  no  other  way 
could  this  be  accomplished.  Without  the  protection  ailbrded  by  the 
safeguard  of  property  the  race  of  domestic  animals  would  not  have 
existed. 

In  the  caso  of  animals  in  every  respect  wild  and  yet  useful,  such  as 
sea  fishes,  wild  ducks,  and  most  other  species  of  game,  we  find  dift'er- 
ent  conditions.  Here  man  has  no  control  over  the  animals.  They  do 
not,  in  consequence  of  their  nature  and  habits,  regularly  subject  them- 
selves to  his  power.  He  cannot  determine,  in  any  case,  what  the 
annual  increase  is.  He  cannot  separate  the  superfluous  increase  from 
the  breeding  stock,  and  confine  his  drafts  to  the  former,  leaving  the 
latter  untouched.  For  the  most  part  these  animals  are  not  polygamousj 
but  mate  with  ea«h  other,  and  no  part  of  their  numbers  ore  superfluous 
rather  than  another.  All  drafts  made  upon  them  are  equally  destruc- 
tive; for  all  must  be  taken  from  breeding  animals.  IS'o  selections  for 
slaughter  can  be  made.  In  short,  man  can  not,  by  the  practice  of  art 
and  industry,  breed  them.  They  can  not  be  made  the  subjects  of  hus- 
bandry. And  yet  man  must  be  permitted  to  take  them  for  use,  or  be 
wholly  deprived  of  any  benefit  from  them.  No  award  of  a  property 
interest  in  them  to  any  man  or  set  of  men  would  have  any  effect  in  en- 
abling the  annual  increase  to  be  applied  to  satisfy  human  wants  and 
at  the  same  time  to  preserve  the  stock.  Tlie  law  cotild  not  give  to  in- 
dividual men  that  control  over  them  which  their  nature  and  habits 
deny;  and  the  law  never  makes  the  attempt.  The  fish  of  the  sea  and 
most  of  the  fowls  of  the  air  are,  and  must  forever  remain,  in  every 
sense  wild.    They  are  not,  therefore,  the  subjects  of  property. 

And  here  nature,  as  if  conscious  of  the  inability  of  man  to  furnish 
that  protection  to  these  wild  races  against  destructive  pursuit  which 
the  institution  of  property  affords  in  the  case  of  domestic  animals,  her- 


PROPERTY    IN   TUE    ALASKAN   SEAL   HERD. 


self  inaljos  i)rovision  for  the  purpose.  In  limiting?  witliin  narrow  bonnds 
his  control  over  them,  she  correspondingly  limits  his  power  of  destruc- 
tion. She  confers  upon  these  races  the  means  of  eluding  capture. 
And,  besides  this,  in  the  case  of  wild  animals  most  largely  useful,  she 
makes  destruction  practically  impossible  by  furnishing  a  prodigious 
supply.  The  great  families  c'  useful  fishes  are  practically  inexhaust- 
ible. This  is,  however,  much  !ess  so  in  some  cases  than  in  others.  In  re- 
spect of  many  species  r,f  fishes,  game  birds,  and  other  animals,  the 
human  pursuit  is  so  eager  as  to  endanger  the  existence  of  the  species; 
and  in  such  instances,  society,  unable  by  the  award  of  a  property  in- 
terest to  arrest  the  destruction,  resorts  to  the  most  effective  devices 
which  are  in  its  power  to  secure  that  end.  It  confines  and  limits  the 
destruction  to  certain  seasons  and  places  by  positive  enactments  of 
which  game  laws  are  the  type. 

We  now  come  to  those  animals  which  lie  near  the  vague  and  indefi- 
nite boundary  which  separates  the  icild  from  tlie  tame,to  animals  which 
exhibit  some  of  the  qualities  of  each  class;  and  we  shall  instance  those 
already  made  the  subject  of  discussion  when  confininj^'  our  inquiry  to 
the  settled  doctrines  of  the  municipal  law.  These  instances  were  those 
of  beeSj  deer,  pigeons,  wild  geese,  and  swans.  All  these,  it  will  be  re- 
membered, are  regarded  in  that  law  as  subjects  of  property  so  long 
as  they  possess  the  anitnum  reveriendi,  evidenced  by  their  usual  habit 
of  returning  to  a  particular  place.  These  animals  differ  widely  from 
each  other  in  their  nature;  but  they  have  certain  characteristics  which 
are  common  to  all.  Each  of  them,  habitually  and  voluntarily,  so  far 
subjects  itself  to  the  control  of  man  as  to  enable  him,  by  the  practice 
of  art  and  industry,  to  take  the  annual  increase  fur  the  supply  of  human 
wants  without  diminishing  the  stock ;  in  other  words,  to  breed  them,  and 
to  make  them  the  subject  of  husbandry ;  and,  in  the  case  of  each,  unless 
a  property  interest  were  awarded  by  the  law,  that  is  to  say,  unless  the 
law  came  to  the  aid  of  human  infiimity,  and  declared  them  to  be  sus- 
ceptible o/ou7ner*/Mj),  notwithstanding  the  want  of  actual  possession, 
they  would  cease  to  exist  and  be  lost  to  the  world. 

The  case  of  bees  is  an  instructive  illustration.  They  are  by  nature 
wi^d.  They  can  not  be  tamed  so  as  to  be  made  obedient  to  man.  They 
move  freely  through  the  air  and  gather  their  honey  from  flowers  in  all 
places.  But  they  have  an  instinct  which  moves  them  to  adopt  a  suit- 
able place  for  a  home,  and  man  may  avail  himself  of  this  to  induce  them 
to  take  up  their  abode  upon  his  x>roperty,  where  he  can  protect  them 


9d 


AROUMEirr   OP   THE    UNITED   STATES. 


from  other  enemies  and  take  iirom  them  a  part  of  their  accnmnlatod 
stores.  He  is  thas  also  enablied  to  capture  the  new  swarms  which  are 
produced,  by  following  them  as  they  take  their  flight.  In  this  way  the 
art  and  industry  of  man  may  increase  the  stock  of  bees  and  the  useful 
food  which  they  supply.  The  municipal  laws  of  all  nations  therefore 
declare  that  bees  thus  dealt  with  are  property.  Any  one  who  destroys 
them,  even  when  away  from  the  land  of  the  owner,  commits  a  wrong 
for  which  the  laws  will  afford  full  redress;  and  the  right  of  property 
remains  even  in  respect  to  a  swarm  which  takes  its  flight  beyond  the 
boundaries  of  the  owner,  so  long  as  he  can  identify  and  pursue  it.  It 
would  be  manifestly  impossible  to  protect  that  right  any  further. 
There  is  no  change  effected  in  the  nature  of  the  bees  by  this  action  of 
man.  They  are  as  wild  as  their  follows  which  have  their  homes  in  the 
forest.  Man  simply  avails  himself  of  their  natural  instinct  to  accept  a 
suitable  place  for  their  home  and  storehouse. 

A  similar  instinct  is  possessed  hypigeoiu  which  leads  them  and  their 
offspring  to  take  up  their  abodes  in  places  prepared  for  them  by  man. 
They  may  be  first  wonted  to  it  by  confinement,  or  attracted  by  feeding; 
but  when  they  have  adopted  it,  if  protected  against  enemies  and  cher- 
ished with  care,  their  number  may  be  greatly  multiplied,  and  by  judi- 
cious drafts  upon  the  increase  a  delicate  food  may  be  procured  in  con- 
siderable quantities.  There  is  in  the  case  of  these  animals  a  difficulty 
in  securing  to  individual  owners  all  the  remedial  rights  which  protect 
property  arising  out  of  the  tendency  of  flocks  to  commingle,  and  the 
impossibility  of  identification.  But,  in  spite  of  this,  in  the  opinion  of 
many  jurists,  they  are  to  be  deemed  property.  The  obvious  ground  is 
the  social  beneiit  which  maybe  secured  by  offering  to  this  art  and 
industry  its  natural  reward,  and  thus  encourage  the  practice  of  it. 
Without  such  encouragement  society  would  lose  the  benefit  it  receives 
from  this  animal. 

There  is  a  like  opportunity  to  take  advantage  of  the  instincts  of  wild 
animals,  and  thus  gain  over  them  a  power  which  makes  them  subservi- 
ent to  the  wants  of  man  in  the  case  of  wild  geese  and  swans.  These  also 
may  be  made  wonted  to  a  particular  place,  from  which  they  will  widely 
wander  over  waters  belonging  to  different  owners,  or  to  the  state,  but 
to  which  they  will  habitually  return,  and  where  they  will  rear  their 
young.  They  thus  submit  themselves  voluntarily  to  the  power  of  man, 
and  afford  him  a  control  over  them  which  enables  him  at  once  to  pre- 
serve the  stock  and  take  the  increase.    On  these  grounds  a  right  of 


mUtU. 


PROPERTY  IN  THE  ALASKAN  SEAL  HERD. 


n 


property  in  them  is  conceded  fo  the  owner  of  the  Rpot  which  they  make 
theii"  home,  which  la  not  lost  by  the  temporary  departarcs  therefrom. 
Any  killing  or  canture  of  these  animals  by  another,  having  notice  of 
their  habits,  is  aviolation  of  property  rights  for  which  the  law  famishes 
redress. 

So  also  in  the  case  of  deer  ordinarily  kept  in  an  inclosnre,  and  fed,  and 
from  which  selections  are  made  for  slaughter.  The  habit  of  retoming 
is  here  only  imperfectly  established.  The  animals  are  apt  to  resnme 
their  wild  nature;  but  nevertheless,  the  economic  uses  they  subserve 
aresufiBcient  to  sustain  a  property  interest  in  them,  inasmuch  as  they 
are  thu.s  made,  to  borrow  the  language  employed  in  relation  to  them 
by  the  English  Court  of  Common  Pleas,  "  as  much  a  sort  of  husbandry 
as  horses,  cows,  sheep,  or  any  other  cattle."  • 

It  is  observable  that  these  doctrines  relating  to  property  so  familiar 
in  the  municipal  jurisprudence  of  civilized  nations,  relating  to  the  sev- 
eral descriptions  of  animals  above  mentioned,  have  not  had  their  origin 
in  special  legislation,  but  in  the  unwritten  law.  They  are  the  fruit  of 
the  unconscious  action  of  society  manifesting  itself  in  the  formation  of 
usages  which  eventually  compel  the  recognition  of  law.  This  means 
that  they  have  their  origin  in  natural  law  which  is  the  basis  of  all  un- 
written jurisprudence.  They  are  the  dictates  of  universal  morality, 
cultivated,  abc*;.:.. lined,  and  formulated  by  judicial  action  through  long 
periods  of  time.  It  is  this  which  stamps  them  with  that  character  of 
approved,  long  established  and  unchangeable  truth  which  makes  them 
binding  upon  an  international  forum  as  being  the  indubitable  voice  of 
natural  and  universal  law. 

The  inquiry  which  has  thus  been  prosecuted  into  the  grounds  and 
reasons  upon  which  the  institution  of  property  stands  fully  substantiates, 
it  is  believed,  the  main  proposition  with  which  it  began,  namely,  tiMt 
tchere  any  useful  animals  so  far  subject  themselves  to  the  control  of  particu- 
lar men  as  to  eiMble  them  exclusively  to  cultivate  such  animals  and  obtain 
the  annual  increase  for  the  supply  of  human  wants,  and  at  the  same  time 
to  preserve  the  stock,  they  have  a  property  interest  in  tliem.  And  this 
conclusion,  deducible  from  the  broad  and  general  doctrines  of  the  law 
of  nature,  is  confirmed  by  the  actual  fact  as  exhibited  in  the  usages 
and  laws  of  all  civilized  states.  Wherever  a  useful  animal  exhibits  in 
its  nature  and  habits  this  quality,  it  must  be  denominated  and  treated 
as  the  subject  of  property,  and  as  well  between  nations  as  between 


>  Davies  v.  Powell,  Willes,  46. 


92 


ABGUMENT  OP  THE  UNITED   STATES. 


iDdir'daal  men.  This  is  the  real  groand  npon  wliich  the  mnnicipal  law 
declares  the  several  descriptions  of  wild  anim.'Us,  above  particularly 
adverted  to,  to  be  property.  This  is  what  is  intended  by  making  the 
question  of  property  depend  npon  the  existence  of  the  animus  rerertendi. 

In  the  added  light  thrown  by  this  inquiry  into  the  foundations  of 
Ifte  institution  of  property  the  case  of  the  fur-seal  can  be  no  longer 
open  to  doubt,  if  it  ever  was.  It  is  a  typical  instance.  Polygamous  in 
its  nature,  compelled  to  breed  upon  the  land,  and  confined  to  that 
element  for  half  the  year,  gentle  and  confiding  in  disposition,  nearly 
defenceless  against  attack,  it  seems  almost  to  implore  the  protection 
of  man,  and  to  offer  to  him  as  a  reward  that  superfluity  of  increase 
which  is  not  needed  for  the  continuance  of  the  race.  Its  own  habits 
go  very  far  to  effect  a  separation  of  this  superfluity,  leaving  little  to 
be  done  by  man  to  make  it  complete.  The  selections  for  slaughter 
are  easily  made  withcmt  disturbance  or  injury  to  the  herd.  The  return 
of  the  herd  to  the  same  spot  to  submit  to  renewed  drafts  is  assured 
by  the  most  imperious  instincts  and  necessities  of  the  animal's  nature. 
During  the  entire  period  of  all  absences  the  animiu  revertendi  is  ever 
present.  The  conditions  are,  as  observed  by  the  eminent  naturalist. 
Prof.  Huxley,  ideaV  All  that  is  needed  to  make  the  full  extent  of 
the  blessing  to  mankind  available  is  the  exercise  on  the  one  hand  of 
care,  self-denial,  and  industry  on  the  part  of  man  at  the  breeding 
places,  and,  on  the  other,  exemption  from  the  destructive  pursuit  at 
sea.  The  first  requisite  is  supplied.  A  rich  reward  is  offered  for,  and 
will  certainly  assure,  the  exercise  of  art  and  indnstry  npon  the  land. 
All  that  is  demanded  from  the  law  is  that  exemption  from  destructive 
pursuit  on  the  sea  which  the  award  of  a  property  interest  will  in;:iure. 

Kor  should  we  omit  to  call  attention  to  an  aspect  of  the  question  pre- 
sented by  the  extent  of  the  possession  and  control  of,  and  over,  this 
race  of  animals  bestowed  upon  the  United  States  in  virtue  of  their 
ownership  of  the  lands  to  which  it  resorts.  This  ownership  carries 
with  it  the  power  to  destroy  the  race  almost  at  a  single  Htroke.  It  carries 
with  it  also,  if  interference  by  other  nations  is  withheld,  the  power  to 
forever  preserve.  The  power  to  destroy  is  shared  by  other  nations. 
The  power  to  use,  and  at  the  same  time  to  preserve,  belongs  to  the 
United  States  alone.  This  power  carries  with  it  the  highest  obligation 
to  use  it  for  the  purpose  for  which  it  was  bestowed.  It  is  in  the  highest 
and  truest  sense  a  trust  for  the  benefit  of  mankind.    The  United  States 


>  Case  of  tlie  Uuitod  Stutos,  Appendix,  Vol.  I,  p.  412. 


PROPERTY    IN   THE    ALASKAN   SEAL   HERD. 


98 


ncknowIe<1ge  the  trust  aud  have  hitherto  discharged  it.  Can  anything 
be  clearer  as  a  moral,  and  ander  nataral  laws,  a  legal  obligation  than 
the  duty  of  other  nations  to  refrain  from  any  action  which  will  prevent 
or  impede  the  performance  of  that  trustf  The  only  oiilce  which  belongs 
to  other  nations  is  to  ^  ?e  that  this  trust  is  duly  performed.  In  this  the 
whole  world  has  a  direct  interest.  However  much  interference  by  one 
nation  in  the  affairs  and  couduot  of  another  may  be  deprecated,  it  is  not 
to  be  denied  that  exigencies  may  arise,  as  they  have  arisen,  in  which 
such  interference  may  Le  defended.' 


*  We  have  habitually  referred  to  art,  indiutry,  and  lelf-denial  on  the  part  of  man 
saocessfully  practiced  for  the  purpose  of  inereaaing  th«  annual  product  of  the  earth 
as  being  the  main  foundation  upon  which  society  awards  a  property  interest.  The 
exercise  of  these  qualities  is  eujoined  by  natural  law,  and  nature  always  aattigns  to 
au  observance  of  her  dictates  its  appropriate  reward.  That  art  aud  industry  should 
be  thna  rewarded  is  obvious,  but  the  merit  of  lelf-denial  or  abstinence,  is  not  so  imme- 
diately plaiu.  It  will  be  found,  however,  upon  reflection,  to  possess  the  same  mea«- 
ure  of  desert. 

In  the  case  of  the  seals,  for  instance,  the  immediate  temptation  is  to  turn  the  whole 
mass  to  present  account.  Had  this  beeu  done,  the  herds  would  long  since  have  been 
practically  exterminated.  Their  present  existence  is  the  result  of  a  policy  of  denial 
of  present  enjoyment  in  the  hope  of  a  larger  and  more  permanent  advantage.  It  is 
quite  unnecessary  to  enlarge  upon  the  prodigious  importance  to  mankind  of  such  a 
policy.  Indeed,  without  it  the  race  could  not  have  emerged  from  barbarism.  The 
fur-seals  thus  preserved  are  as  truly  the  fruit  of  human  industry  and  effort  as  any 
of  the  products  of  the  artisan. 

This  merit  of  abstinence  is  the  sole  foundation  upon  which  economists  and  moral- 
ists place  the  right  to  capital,  and  interest  for  its  use.  Capital  is  the  simply  the  fruit 
of  abstinence.    The  following  citations  are  pertineut  in  this  place: 

From  N.  W.  Senior,  Politiciil  Economy,  6th  ed.,  London,  1872,  p.  68  et  seq. 

"But  although  human  labour  and  the  agency  of  nature,  independently  of  that  of 
man,  are  the  primary  productive  powers,  they  require  the  concurrence  of  a  third  pro- 
ductive  priuciple  to  give  them  complete  efiQcicncy.  The  most  laborious  population 
inhabiting  the  most  fertile  territory,  if  they  devoted  all  their  labour  to  the  produc- 
tion of  immediate  results  aud  consumed  its  produce  as  it  arose,  would  soon  find  their 
atmost  exertions  iusuHlcient  to  produce  even  the  mere  necessaries  of  existence. 

"To  the  third  principle  or  instrument  of  production,  without  which  the  two  others 
are  inefficient,  we  shall  give  the  name  of  abstinence,  a  term  by  which  we  express  the 
conduct  of  a  person  who  either  abstains  from  the  unproductive  use  of  what  he  can 
command,  or  designedly  prefers  the  production  of  remote  to  that  of  immediate 
reisults." 

After  defining  capital  as  "  an  article  of  wealth,  the  resnlt  of  human  exertion  em- 
ployed in  the  production  or  distribution  of  wealth,"  he  goes  on  to  say:  "It  is  evi- 
dent that  capital  thus  defined  is  not  a  simple  productive  instrument.  It  is  in  most 
cases  the  tesult  of  all  the  three  productive  instruments  combined.  Some  natural 
agent  must  have  atforded  the  material;  some  delay  of  enjoyment  must  in  general 
have  reserved  it  from  unproductive  use,  and  some  labour  must  in  general  have  been 
employed  to  prepare  and  preserve  it.  By  the  word  abstinence  tee  wish  to  express 
that  agent,  distinct  from  labour  and  the  agency  of  nature,  the  concurrence  of  which  is  nec- 
essary to  the  exiitenoe  of  capital  and  which  stands  in  the  same  relation  to  profit  as  labour 
does  to  wage*.    We  are  aware  that  we  employ  the  word  abstinence  in  a  more  exteu- 


94 


ARGUMENT  OF   THE   UNITED   STATES. 


It  aeems  impossible  to  imagine  any  ground  upon  which  this  demand 
can  be  resisted,  and  even  difBcnlt  to  understand  how  a  question  could 
have  been  made  rejecting  it.  If  there  were  even  the  semblance  of  a 
moral  reason  upon  which  opposition  could  be  rested,  there  might  be 
room  for  hesitation  and  debate;  if  anything  in  the  nature  of  a  right  to 


siveBenae  than  is  warranted  by  common  usage.  Attention  is  usually  drawn  to  absti« 
nenoe  only  when  it  is  not  united  with  labour.  It  is  recojruized  instantly  in  the  oon- 
dnot  of  a  man  who  allows  a  tree  or  n  domestic  animal  to  attain  ita  full  growth,  but  it 
is  less  obvious  when  he  plants  the  sapling  or  sows  the  seed  corn.  The  obserrer'a 
attention  is  oocnpied  by  the  labour,  and  he  omits  to  consider  the  additional  sacrifloe 
made  when  labour  is  undergone  for  a  distant  object.  This  additional  sacrifice  we 
comprehend  under  the  term  abstinence.  *  *  *  of  all  the  means  by  which  man 
can  be  raised  in  the  scale  of  bein^,  abstinence,  as  it  is  perhaps  the  most  etTectiTe,  is 
the  slowest  in  increase,  and  the  latest  generally  diffused.  Among  nations  those  that 
are  the  least  civilized,  and  among  the  different  classes  of  the  same  nation  those  which 
are  the  worst  educated,  are  almost  the  moat  improTident  and  oonseqaently  the  least 
abstinent." 

(At  page  69) :  "  The  savage  seldom  employs,  in  making  his  bows  or  his  dart,  time 
which  he  could  devote  to  the  obtaining  of  any  object  of  immediate  enjoyment.  He 
exercises,  therefore,  labour  and  providence,  but  not  abstinence.  The  first  step  in 
improvement,  the  rise  from  the  hunting  and  fishing  to  the  pastoral  state,  implies 
an  exercise  of  abstinence.  Much  more  abstinence,  or,  in  other  words,  greater  use  of 
oapital,  is  required  for  the  transition  f^om  the  pastoral  to  the  agricultural  state; 
and  an  amount  not  only  still  greater,  but  constantly  increasing,  is  necessary  to  the 
prosperity  of  mauufactuics  and  commerce." 

From  "  Essai  sur  la  Repartition  des  Riohesses,"  par  Paul  Leroy-Deaoliea,  2d  ed. 
Paris.  1883: 

-  The  first  cause  of  interest  is  the  service  rendered  to  the  borrower,  the  inoreaaa 
of  productivity  given  to  his  labor,  industry,  commerce.  The  second  cause  of  inter- 
est is  the  puina  taken  by  the  lender,  the  sacrifice  necessary  for  alwtinence  in  depriv- 
ing himself  of  immediate  consumption  for  a  delayed  profit." 
From  "  American  Political  Economy."  Francis  Bowen,  p.  204,  oh.  xi  t 
"Capital  being  amassed  as  we  have  seen  by  frugality  or  abstinence,  profits  are  the 
teward  of  abstinence  Just  as  wages  are  the  remuneration  of  labor,  and  rent  is  the 
compensation  for  the  use  of  land." 

From  "  Some  leading  Principles  of  Political  Economy  Newly  Expounded."  By 
J.  E.  Caimes,  New  York,  1874,  p.  80: 

"  The  term  abstinence  is  the  name  given  to  the  sacrifice  involved  in  the  advance 
of  oapital.  As  to  the  nature  of  the  sacrifice  it  is  mainly  of  a  negative  kind,  consist- 
ing chiefly  in  deprivation  and  postponement  of  enjoyment  implied  in  the  fact  of 
parting  with  our  wealth,  so  far  at  least  as  concerns  our  present  power  of  command- 
ing it." , 

From  "  Principles  of  Economics."  Alfred  Marshall,  professor  in  the  University  of 
Cambridge,  London,  1870.    Vol.  1,  bk.  vii,  oh.  vu,  sec.  2,  p.  612: 

"A  man  who,  working  on  his  own  account,  makes  a  thing  for  himself  has  the 
nsance  of  it  as  the  reward  for  his  labour.  The  amount  of  his  work  may  be  de- 
termined in  a  great  measure  by  custom  or  habit,  but  in  so  far  as  his  action  is  deliber- 
ate he  will  cease  his  work  when  the  gains  of  further  work  do  not  seem  to  him 
worth  the  trouble  of  getting  them.  But  the  awakening  of  a  new  desire  will  induce 
him  to  work  on  further.    He  may  take  out  the  fruita  of  this  extra  work  in  immedi- 


PBOPERTY    IN   THE    ALASKAN   SEAL    HERD. 


95 


capture  seals  at  sea  could  bo  pretended,  it  would  bo  necessary  to  pause 
and  deliberato.  It  may  indeed  be  said  that  there  is  no  power  in  the 
United  States  to  prevent  sealing  upon  the  high  seas;  but  this  is  a  beg- 
ging of  the  question.  If  they  have  a  property  ^'itorest  in  thesoiils, 
the  power  to  protect  it  cau  not  be  wanting.    But  let  this  question  go 


By 


ate  and  passing  enjoyment,  or  in  lasting  but  distant  bonofits,  *  *  *  or  in  inrple- 
meuts  wbich  will  aid  him  in  bis  work,  *  *  *  or,  lastly,  in  things  which  he  can 
lot  out  ou  hire  or  so  invest  as  to  derive  an  income  from  tlem.  Man's  nature,  how- 
ever,  beiug  impatient  of  delay,  he  will  not,  a$  a  rule,  select  any  of  the  three  latter 
methods  unless  the  total  benuUt  which  he  expects  in  the  long  run  suoms,  alter  allow- 
ing for  all  risks,  to  show  a  surplus  over  its  benefits  to  be  <lorivtHl  by  taking  out  the 
fruits  of  his  labor  in  immediate  enjoyment.  That  surplus,  whether  it  take  the  I'urm 
of  interest  on  capital,  or  extra  pleasure  derived  from  the  direct  usai've  of  permanent 
forms  of  wealth,  is  the  reward  of  his  postponing  or  waiting  for  the  fruits  of  his 
labour." 

From  the  Ethics  of  Usury  and  Interest.  By  W.  Bllssard,  m.  ▲.,  London,  1892,  p. 
26  et  »eq. : 

"On  the  hypothesis  that  all  have  equal  opportunities  of  social  progress,  the  social 
destroyers  of  its  wealth  deserve  condemnation,  while  thosa  who  have  served  the 
cause  of  progress  by  saving  from  personal  consumption  a  part  of  the  earth's  produce 
and  devoting  it  to  the  improvement  of  national  mechanism  have  a  claim  to  a  reward 
proportioned  to  their  service  and  to  the  eflforts  which  they  have  made  in  rendering 
it.  These  are  the  conditions  of  advance  in  civilization  in  the  arts,  and  sciences,  in 
literature,  and  religion.  Fur  the  command  over  nature  ditferentiates  the  civilized 
mau  from  the  savage.  *  *  *  It  appears,  hence,  how  accurate  is  the  common 
phrase  which  calls  thrift  '  saving.'  Economists  favor  such  other  words  as  '  absti- 
nence,' deferred  'enjoyment,'  and  the  like;  but  to  'save'  expresses  the  primary  idea 
that  something  bus  been  saved  from  the  destruction  to  which  mere  animal  instinct 
would  devote  it.  In  such  salvage  lies  the  progress  of  the  human  species  from  sav- 
agery to  godhead.  By  how  much  has  been  thus  saved  baa  the  salvation,  material, 
mental,  and  moral,  of  the  race  been  achieved." 

From  "  Political  Economy."  By  Francis  A.  Walker.  New  York,  1883.  Page  67, 
sec.  78 : 

"  The  Law  of  Capital. — It  is  not  necessary  to  trace  further  the  increase  of  capital. 
At  every  step  of  its  progress  capital  follows  one  law;  It  arises  solely  out  of  saving; 
it  stands  always  for  self-denial  and  abstinence." 

(Page  232) :  "  Capital  is,  as  we  have  seen,  the  result  of  saving.  Interest,  then,  is 
the  reward  of  abstinence.  A  part,  a  large  part,  of  all  produced  wealth  must  be  ut 
once  consumed  to  meet  the  conditions  of  human  existence ;  but  the  remaining  portion 
may  be  consumed  or  may  be  accumulated,  according  to  the  will  of  the  u  ruer.  The 
strength  of  the  motive  to  accumulation  will  vary  with  the  reward  of  abstinence. 
If  that  be  high  the  disposition  to  save  will  be  strengthened,  and  capital  will  be 
rapidly  accumulated;  if  that  be  low,  that  disposition  will  be  relatively  weak,  and 
capital  will  increase  slowly,  if  indeed  the  body  of  existing  capital  be  not  dissipated 
at  the  demands  of  appetite." 

From  "Chapters  on  Practical  Political  Economy."  Prof.  Bonamy  Price.  2d  ed. 
London,  1882.    Pages  127, 128: 

Speaking  of  Profit  he  says:  "What  ia  the  nature,  the  principle  of  this  gainf  It  is 
a  reward  for  two  things,  for  the  creation  and  employment  of  capital.  Economists 
have  rightly  explained  the  need  and  Justification  for  such  a  reward  fur  the  creation 
of  capital,  that  it  is  a  compensation  for  abstinence.    The  owner  of  the  wealth 


96 


ARGUMENT   OF   THE    UNITED   STATES. 


for  the  present;  it  will  be  elHewliere  discussod.  Let  it  be  conceded, 
for  the  sake  of  arguraeut,  that  the  United  States  have  no  power  to  pro- 
tect and  punish,  uriU  it  be  asserted  before  this  Tribunal,  bound  to 
declare  and  administer  thn  law  of  nature  and  nations — a  system  of 
morality — that  this  oonstitutes  aright?    What  is  it  precisely  which 

might  have  devoted  it  to  h\n  own  enjoyment;  ho  itroforred  to  snve  it  or  tnru  it 
into  an  instrauient  for  crontin^  iVesh  wntilth.  It  vriM  bis  o\«n  voluntary  act,  behave 
np  some  luxury,  he  flndH  atonunient  in  improved  income  from  increaHed  wealth. 
His  aim  wns  profit,  b>it  proHt,  though  it  enriched  him,  was  no  seltlub  course;  luxuri- 
oaa  expenditnre  would  have  boon  the  real  rcli^ibnuHii.  Uy  going  in  for  profit  he 
benefltHHociety.  His aavingH  nre  an  advantage  to  othbrsaa  well  aa  to  bimsolf.  *  •  * 
Profit  is  the  last  thing  which  should  be  grudged,  for  piotit  is  the  creator  of  capital, 
and  capital  is  the  life  blood  of  civiliz^don  and  conimunial  progress." 

From  "  Manual  of  Political  Economy."  Henry  FawcoU.  London,  1877.  I3k.  II, 
oil.  V,  p.  157: 

"As  capital  is  the  rosu/t  of  saving,  the  owner  of  oapitnl  exercises  forhoarance 
when  he  saves  bis  wealth  iustedd  of  spending  it.  Profits  tliorofuru  are  the  ro\'ard 
of  abatlneuce  in  the  same  manner  that  wages  are  the  reward  of  physical  oxer- 
tion." 

From  "The  Science  of  Wealth."    Amasa  Walker.     Boston,  1877.    Cli.  vi,  p.  288: 

"Interest  has  its  justification  in  the  right  of  property.  If  a  man  can  claim  the 
ownership  of  ary  kind  of  wealth,  he  is  the  owner  of  all  it  fairly  produces  •  •  • 
whoever  by  labour  produces  wealth  and  by  self-denial  preserves  it  should  be  ( Ilowed 
•11  the  benel\t  that  wealth  can  render  in  future  production." 

From  "  Introduction  to  Political  Economy."  A.  L.  Perry.  New  York,  1877.  P.  115. 

"The  origin  of  all  capital  is  in  abstinence,  and  the  reward  of  this  abstinence  is 
profit." 

From  "  A  System  of  Political  Economy."    J.  L.  Shadwell.    London,  1877.    P.  159. 

"They  (capitalists)  desire  to  obtain  it  (profit)  because  the  savingof  capital  implies 
the  exercise  of  abstinence,  as  the  capitalists  might  have  exchanged  it  for  other 
things  for  their  own  Immediate  oonsuraptiou;  but  if  they  forego  their  ei\joyment  in 
order  to  produce  commodities  they  require  some  compensation  for  the  sacrifice  to 
which  they  submit." 

From  John  Stuart  Mill.  "Principles  of  Political  Economy."  Boston,  1848.  Vol. 
II,  p.  484: 

"As  the  wages  of  the  laborer  are  the  remuneration  of  labor,  so  the  profits  of  the 
capitalist  are  properly  the  remuneration  of  abstinence.  They  are  what  he  gains  by 
forbearing  to  consume  his  capital  for  his  own  uses  and  allowing  it  to  be  consumed 
by  productive  laborers  for  tiicir  nses ;  for  this  forbearance  he  requires  a  recompense." 

And  again,  at  page  553:  "Capital  •  »  *  being  the  result  of  abstinence,  the 
produce  of  its  value  must  be  sufllcient  to  remunerate  not  only  all  thu  labor  required 
but  the  abstinence  of  all  the  persons  by  whom  the  remuneration  of  the  difiurent 
classes  of  laborers  was  advanced.    The  return  for  abstinence  is  profit." 

From  "Manuel  d'l^couomie  Politique."  Par  M.  H.  Baudrillard.  4th  ed.  Paris, 
1878.    P.  382: 

"The  first  element  of  interest  is  the  privation  to  which  the  lender  subjects  him- 
self, who  surrenders  his  capital  for  the  benefit  of  another." 

(7<I.,p.52):  "Based  upon  right,  ownorsbip  is  not  less  justified  by  the  strongest 
reasons  derived  from  social  utility.    It  is  useful  for  thu  laborer  who  has  fertilized 


PROPERTY   IN   THE   ALASKAN   SEAL    HKRD. 


97 


would  thtiH  bo  sot  up  as  a  rightt  It  iHHimply  and  without  qn:i1iilration 
a  right  to  dentroif  one  of  tho  gifts  of  nature  to  man.  It  would  bo  say- 
ing, not  to  tho  United  StatoH  ahine,  but  to  {ho  whoh^  world,  "You  Hhall 
no  longer  have  this  blessing  which  was  originally  bestowed  upon  you — 
this  opportunity  which  nature  aflbrds  to  secure  tlie  preservation  of  tho 
source  of  a  blessing  and  nuike  it  pernuiiu>ntly  available  sliall  not  be 
improved;  and  if  you  ask  us  for  a  reason  we  ^dve  you  i\'  -e,  except 
that  wo  so  choose,  and  can,  for  a  few  years  at  least,  make  a  i)r<>tlt  to  our- 
selves by  carrying  on  the  work  of  destruction;  the  see  's  iree," 

Ahrens'  states:  The  dellnitions  of  tho  right  of  i>. .iperty  give'i  by 
positive  lawo  „  ■  .orally  noncedo  to  the  owner  the  i)ower  f«i  dispose 
of  hiF  bject  in  an  almost  absolute  manner,  to  use  and  abuse  it,  and 
even  through  caprice  to  destroy  it;*  but  this  arbitraiy  power  is  not  in 
keeping  with  natural  law,  and  positive  legislation,  obedient  to  tiie  voice 
of  common  sense  and  reason  in  the  interest  of  sociisty,  has  been 
obliged  itself  to  establish  numerous  restrictions,  which,  examined  from 
a  philosophic  view  of  law,  are  the  result  of  rational  principli^s  to  which 
the  right  of  property  and  its  exercise  are  subjected. 

The  principles  which  goveru  socially  the  right  of  property  relate  to 
substance  and  to  form. 

I.  As  to  substance,  the  following  rules  may  be  established: 

1.  Property  exists  for  a  rational  purpose  and  for  a  rational  use;  it 
is  destined  to  giitisfy  the  various  needs  of  human  life;  consequently, 
all  arbitrary  abuse,  all  arbitrary  destruction,  are  contrary  to  riijht  {droit) 
and  should  be  prohibited  by  law  {loi).  But  to  avoid  giving  a  false  ex- 
tension to  this  principle,  it  is  important  to  recall  to  mind  that,  accord- 
ing to  personal  rights,  that  which  is  committed  withiu  the  sphere  of 


the  soil  to  retain  the  soil  itself  as  well  as  tlie  aurfaoo.  OthorwiHO  ho  will  use  the 
soil  as  a  possessor  who  is  iu  haste  to  enjoy  it.  'Vhcnt  a  thoiiglit  of  tho  fiitiiru  is 
wanting  there  will  be  no  real  improvement,  no  nunie:ou8  and  well-supported  pop- 
ulation, no  civilization  with  deep  roots  either  moral  or  material." 

*  *  *  "  All  these  advantages  can  be  tho  outgrowth  of  uuti.lng  but  permnuont 
ownership.  For  the  same  reason  it  is  well  for  ownership  to  be  individual  and  not 
collective;  of  this  we  tind  proof  in  the  religious  communities  of  the  middle  ages, 
and  in  onr  own  time  in  the  very  imperfect  condition  of  property  held  in  common. 
Collective  ownership  is  attended  with  this  drawback,  viz,  that  it  does  nut  sulU- 
oieutly  stimulate  'he  activity  of  the  owner." 

>  Ahrens:  Course  of  Natural  Law,  Leipzio,  1876,  vol.  2,  book  I,  div.  1,  sec  &l. 

'  Soman  law  gave  the  owner  the  jus  utendi  et  abutendi ;  after  the  Austrian  codo 
(11,  2,  seo.  362),  he  has  the  power  to  destroy  arbitrarily  that  which  belongs  to  him. 
The  Code  Napoleon  which  detlnes  property  as  "tho  right  to  enjoy  and  to  dispose  of 
things  in  the  most  absolute  manner,  provide'  no  use  bo  made  of  tlium  forbidden 
by  the  laws  or  by  the  regulations,"  interposed  social  interest  by  this  restriction. 

14740 7 


98 


ABGUMENT   OP   THE   UNITED   STATES. 


private  life  and  of  that  of  the  family  does  not  come  under  the  appli- 
cation of  public  law.  It  is  necessary,  therefore,  tlmt  the  abuse  be 
public  in  order  that  the  law  may  reach  it.  It  belongs  to  the  legisla- 
tions regulating  the  various  kinds  of  agricultural,  industrial,  and 
commercial  property,  as  well  as  to  penal  legislation,  to  determine  the 
abuses  which  it  is  important  to  protect;  and,  in  reality  legislations  as 
well  as  police  laws,  have  always  specified  a  certain  number  of  cases  of 
abuses.^  Besides,  all  abusive  usage  is  hurtful  to  society,  because  it  is 
for  the  public  interest  that  the  object  should  give  the  owner  the  advan- 
tages or  the  services  it  admits  ol? 

It  is  assumed  throughout  the  Eeport  of  the  British  Commissioners 
that  pelagic  sealing  is  not  necessarily  destructive,  and  that,  under 
regulation,  the  prosecution  of  it  need  not  involve  the  extermination  of 
the  herds.  This  assumption  and  the  evidence  bearing  upon  it  will  be 
elsewhere  particularly  treated  in  what  we  may  have  to  say  upon  the 
subject  of  regulations.  It  will  there  be  shown  that  it  is  not  only 
destructive  in  its  tendency,  but  that,  if  permitted,  it  will  complete  the 
work  of  practical  extermination  in  a  very  short  period  of  time.  But 
so  far  as  it  is  asserted  that  a  restricted  and  regulated  pelagic  sealing  is 
consistent  with  the  moral  laws  of  nature  and  should  be  allowed,  the 
argument  has  a  bearing  upon  the  claim  of  the  United  States  of  a  prop- 
erty interest,  and  should  be  briefly  considered  here.  Let  it  be  clearly 
understood,  then,  just  what  pelagic  sealing  is,  however  restricted  or 
regulated.  And  we  shall  now  deccribe  it  by  those  features  of  it  Avhich 
are  not  disputed  or  disputable. 

We  pass  by  the  shocking  cruelty  and  inhumanity,  with  its  sicken- 
ing details  of  bleating  and  crying  oflfspring  falling  upon  the  decks  from 
the  bellies  of  mothers,  as  they  are  rii)ped  open,  and  of  white  milk  flow- 
ing in  streams  mingled  with  blood.  These  enormities,  which,  if  at- 
tempted within  (ho  territory  of  a  civilized  State,  would  wpeedily  be 


'  On  the  occasion  of  the  debate  of  Art.  544,  which  defined  property,  Napoh^on 
expressed  energetically  the  necessity  of  suppressing  abusos.  "  The  abuse  of  prop- 
erty," said  he,  "should  be  suppressed  every  time  it  becomes  hurtful  to  society. 
Thus,  it  is  not  allowed  to  out  down  unripe  grain,  to  pull  up  famous  grapevines.  I 
would  not  sudor  that  an  individual  should  smite  with  sterility  20  leagues  of 
ground  in  a  graiu-bearmg  department,  in  order  to  make  for  himself  a  park  thereof. 
The  right  of  abuse  does  not  extend  so  far  as  to  deprive  a  people  of  its  sustenance." 

'  Koman  law  says  in  this  sense,  see.  3, 1,  Do  patr.  pot.  1, 8:  "Expedit  enim  reipubli- 
08B  ne  sua  re  quis  male  utatur."  Leibnitz  further  expands  this  principle  of  the  Koman 
law  by  saying  (De  notionibus  juris,  etc.) :  "  Cuiii  nos  nostraque  Deo  debeamus,  ut 
roipubliou>,  ita  multu  ma;j;is  uuiversi  interest  uo  qnis  re  sua  male  utatur." 


PBOPERTY   IN   THE   ALASKAN   SEAL   HERD. 


99 


made  the  subjects  of  criiuiual  puiiisbiiient,  are  not  relevant,  or  ai'e  less 
relevant,  in  the  discussion  of  the  mere  question  oi"  property. 

It  is  not  contended  that  in  pelagic  sealing  (1)  there  can  be  any  select- 
ive killing;  or  (2),  that  a  great  excess  of  females  over  males  is  not  slain; 
or  (3),  that  a  great  number  of  victims  perish  from  wounds,  without 
being  recovered;  or  (4),  tliat  in  most  cases  the  females  killed  are  not 
either  heavy  with  young,  or  nursiiig  mothers;  or  (5),  that  each  and 
every  of  these  incidents  can  not  be  avoided  by  the  selective  killing 
which  is  practiced  ou  the  breeding  islands.  We  do  not  stop  to  discuss 
the  idle  questions  whether  this  form  of  slaughter  will  actually  cMermi- 
natc  the  herds,  or  how  long  it  may  take  to  complete  the  destruction.  It 
is  enough  for  the  present  purpose  to  say  that  it  is  simple  destruction. 
It  is  destructive,  because  it  does  not  make,  or  aim  to  make,  its  draft 
upon  the  increase,  which  consists  of  the  sui)ei"fluous  males,  but.  by 
taking  feumles,  strikes  directly  at  the  stock,  and  strikes  at  the  stock  iu 
the  most  diMuaging  way,  by  destroying  unborn  and  newly-born  pups, 
together  with  their  mothers.  "Whoever  undertakes  to  s?it  up  a  moral 
right  CO  prosecute  this  mode  of  slaughter  on  the  ground  that  it  will  not 
necessarily  result  in  comjdete  destruction,  must  maintain  that  while  it 
may  be  against  the  law  of  nature  to  work  complete  destruction,  it  is  yet 
lawful  to  destroy  I  But  what  the  law  of  nature  forbids  is  any  destruc- 
tion at  all,  unless  it  is  necessary.  To  destroy  a  little,  and  to  destroy 
vmcli,  are  the  same  crimes. 

If  there  were  even  somcihiiig  less  than  a  Wf/Af,  or  rather  some  hno 
degree  of  right — for  nothing  other  than  rights  can  be  taken  notice  of 
here — some  mere  convenience,  it  might  be  worthy  of  consideration ;  but 
there  is  none.  It  cm  not  even  be  said  that  pelagic  sealing  may  furnish 
to  the  world  a  sealskin  at  a  lower  i)rice.  Nothing  can  be  plainer  than 
that  it  is  the  most  expensive  mode  of  capturing  seals.  It  requires  the 
expenditure  of  a  vast  sum  m  vessels,  boats,  appliances,  and  human 
labor,  Avhich  is  all  unnecessary,  because  the  entire  increase  can  be 
reaped  without  them.  This  unnecessary  expense  is  a  charge  upon  the 
consumer  and  nuist  be  reimbursed  in  the  price  he  pays.  In  no  way  can 
pelagic  sealing  result  in  a  cheapening  of  the  product,  except  upon  the 
assumption  that  the  stock  oi"  seals  is  inexhaustible,  and  that  the  amount 
of  the  pelagic  catch  is  an  addition  to  the  total  catch,  which  might  be 
made  on  the  land  if  capture  were  restricted  to  the  land;  and  this  as- 
sumpticm  is  admitted  ou  all  bauds,  and  even  by  the  Oommissiuuers  of 
.Great  Britain,  to  be  imtruo. 


100 


ARGUMENT  OP  THE  UNITED  STATES. 


If  there  were  any  evilj  or  inconvenience  even,  to  be  apprehended  from 
a  confiuement  of  the  capture  of  the  seals  to  the  breeding  phices,  it 
might  serve  to  arrest  attention;  but  there  is  none.  Much  is  said,  in- 
deed, in  the  Bepoi't  of  the  Gouiuiissioners  of  Great  Britain  concerning 
a  supposed  monopoly  Avliich  would  thus  be  secured,  as  is  pretended,  to 
the  lessees  of  the  breeding  islands  which  would  enable  them  to  exact 
an  excessive  price  lor  skins;  but  this  notion  is  wholly  erroneous. 

The  annual  drafts  made  at  the  island  from  the  increase  of  the  herds 
are  not  made  for,  and  can  not  be  monopolized,  or  appropriated,  by  the 
United  States.  They  are  made  for  mankind  everywhere,  and  find  their 
way  to  those  who  want  them  and  are  able  to  procure  them  wherever 
upon  the  face  of  the  world  they  may  dwell.  To  the  owners  of  these 
islands,  whoever  they  may  be,  they  are  intrinsically  useless,  except  the 
insignificant  number  which  may  be  useful  for  food  or  clothing.  Their 
only  value  to  them  is  as  articles  of  commerce,  as  means  by  which 
needed  commodities  may  be  obtained  from  others  who  may  have  a 
superior  desire  for  the  benefits  afforded  by  these  animals.  They  are 
furnished  through  the  instrumentality  of  commerce  to  those  who  want 
them  upon  the  same  terms  upon  which  they  are  furnished  to  the  citi- 
zens of  the  United  States.  The  human  race  thus  perfectly  secures  to 
itself  the  benefit  which  nature  intended  the  animal  should  supply. 
Nor  can  the  United  States  exact  from  the  world  whatever  jirice  it 
pleases  for  the  product  of  the  animal.  It  can  not  exact  a  penny  more 
than  the  world  is  willing  to  give;  and  this,  as  in  the  case  of  every 
other  commodity,  is  its  just  value. "  The  cost  of  i)roduction,  and  the 
operation  of  supply  and  demand  will  determine  the  price  of  this,  as  of 
eveij  other,  commodity.  Any  other  mode  of  capturing  the  animal  for 
the  market  is  obviously  and  confessedly  more  expensive,  and  must 
necessarily,  other  things  being  equal,  involve  an  increased  price,  and 
simply  impose  an  additional  tax  upon  the  consumer. 

There  are,  indeed,  instances  of  commodities  in  which  the  possible 
supply  greatly  exceeds  the  wants  of  the  world,  and  where,  if  the  whole 
product  were  thrown  upon  the  market,  it  would  become  almost  worth- 
less, producing  a  sum  much  less  than  would  have  been  gained  had  a 
comparatively  small  part  only  been  offered.  In  such  cases,  if  the  sources 
of  supply  are  a  monopoly  under  a  single  direction,  a  large  profit  may 
sometimes  bo  secured  by  an  artificial  limitation  of  the  supply.  It  is 
said  that  the  Dutch  once  found  an  advantage  like  this  from  a  voluntary 
destruction  of  a  large  part  of  the  product  of  the  Spice  Islands.    But 


PROPERTY   IN   THE   ALASKAN   SEAL   HERD. 


101. 


the  case  of  the  lessees  of  the  Pribilof  Islands  is  tlie  opposite  of  this. 
They  never  can  be  even  tempted  to  limit  the  supply,  Nature  herself 
has  limited  it  all  too  rigidly.  A  large  profit  is  derivable  from  every 
seal  which  pruileuce  will  permit  to  be  taken.  The  temptation  is  to  take 
too  largely.  Abstinence,  and  not  waste,  is  the  true  policy.  Indeed, the 
Keport  of  the  Commissioners  of  Great  Britain  makes  it  a  principal 
charge  against  the  management  of  the  lessees  that  they  make  drafts 
upon  the  herds  too  large,  instead  of  too  small.  Now,  where  the  entire 
product  of  a  source  of  supply  is  thrown  upon  the  market,  the  price  will 
be  governed  by  the  demand.  The  world  will  pay  a  certain  amount  for 
it  and  no  more;  and  the  circumstance  that  there  is  a  monopoly  of  the 
commodity  is  unimportant.' 

Divers  charges  are  made  in  the  Beport  of  the  British  Commissioners 
of  neglect  and  mismanagement  by  the  lessees  of  the  islands  in  the 
conduct  of  the  business  of  caring  for  the  seals  and  making  the  annual 
drafts  from  the  herds.  These  topics  have  but  a  small  measure  of  rele- 
vancy here.  They  are,  with  some  unimportant  exceptions,  whollv  de- 
nied, and  will  be  elsewhere  in  this  argument  shown  to  be  erroneous. 
But  if  it  be  intended  by  these  charges  to  show  that  the  prime  object  of 
the  law  of  natui'e  to  make  the  increase  of  animals  available  to  man- 
and  at  the  same  time  to  preserve  the  stock,  is  not  most  certainly  g-aiiied 
in  the  case  of  an  anlmiil  like  the  seal  by  declaring  a  property  interest 
in  those  who  have  the  power  to  secure  it,  some  observations  upon  them 
are  pertinent  here.  In  this  aspect  these  charges  proceed  upon  the 
assumption  that  a  scheme  of  protection  by  care,  industry,  and  select, 
ive  killing  is  necessary.  If  this  be  so,  when  and  how  can  it  be  adopted 
and  maintained  except  through  the  recognition  of  a  property  interest? 
It  can  not  be  questioned  that  this  care  and  prudenc^e  are  best  secured 
by  bringing  into  play  the  motive  of  fseif-iuterest.  How  can  this  be 
done  except  through  the  recognition  of  a  property  interest?  What 
other  device  has  human  society  found  in  any  stage  of  civilization  in 
any  land  or  iti  any  age?  What  new  sr  bstitute  has  the  wisdom  of  these 
Commissioners  to  suggest?  Is  it  necessary  to  tell  the  breeder  of  sheep 
that  he  must  preserve  his  flocks  and  make  his  main  dralts  for  the  mar- 
ket upon  his  superfluous  males?  It  may  be  admitted  that  the  United 
States  may  sometimes  fall  into  errors  and  neglects  against  their  own 
interest.  They  assv  .i,for  themselves  no  infallibility;  but  they  do  insist 
that  there  is  no  error  and  no  neglect  which  they  could  as  owners  and 


'MUl.  Pol.  Ecoii.,  ])()uk  II,  Chap.  5,  (  2. 


102 


ARaiTMENT  OP  THE   UNITED   STATES. 


cultiv.ators  of  these  herds  commit  which  would  be  in  violation  of  the 
teachin(!^s  of  science  and  the  laws  of  nature  and  operate  to  obstruct 
the  enjoyment  by  mankind  of  the  full  product  of  the  animal,  which 
would  not  at  the  same  time,  and  in  larger  measure,  result  in  loss  and 
injury  to  themselves.  They  have  not  and  can  not  have,  upon  the 
grounds  taken  in  this  argument,  any  interest  which,  in  the  slightest 
degree, conflicts  with  that  of  the  world  at  large.  They  would  be  grate- 
ful to  have  any  errors  in  the  management  by  them  pointed  out,  to  the 
end  that  they  might  apply  a  remedy.  And  what  is  true  in  respect  of 
the  United  States  is  true  also  of  their  lessees.  The  latter  can  hjive  no 
interest  not  in  harmony  with  the  intei'ests  of  all.  This  observation  is 
subje*  t  to  a  qualification  limited  to  lessees  wliose  lease  is  about  to  ex- 
pire. An  outgoing  tenant  is,  indeed,  sometimes  under  a  temptation  to 
commit  waste.  Against  this  possible  mischief  the  United  States  have 
endeavored  to  guard  by  the  policy  of  making  long  leases.  It  is  believed 
to  have  been  entirely  effectual. 

But  all  suggestions  of  the  insufficiency  of  the  guaranties  furnished 
by  a  recognition  of  a  property  interest  to  carry  out  the  dictates  of 
science  and  natural  law  in  respect  to  animals  having  a  nature  and  hab- 
its such  as  the  fur-seal  exhibits  are  absolutely  silenced  by  a  reference 
to  the  conclusive  teachings  of  actual  and  long  experience.  Russia  en- 
joyed during  the  whole  period  of  her  occupation  of  the  islands  the  full 
benefit  practically  of  a  property  interest.  She  maintained  an  exclu- 
sive dominion  of  the  herds  upon  the  land,  and  no  attempt  to  interfere 
with  them  by  pelagic  sealing  was  made.  By  her  care,  industry,  and 
self-denial,  tempted  and  rcAvarded  by  the  profits  of  the  industry,  the 
normal  numbers  of  the  herds  were  maintained,  and  at  the  same  time 
large  annual  drafts  were  made.  And  whon,  as  happened  more  than 
once  from  exceptional  causes  which  could  not  be  prevented,  the  num- 
bers were  greatly  reduced,  a  more  rigid  and  self-enforced  abstinence 
brought  about  a  full  restoration.  At  the  beginning  of  the  occupation 
of  the  United  States,  and  before  their  authority  and  oversight  were 
fully  established,  an  irregular  and  excessive  slaughter  again  greatly 
reduced  the  herds,  and  this  damage  was  again  fully  repaired  by  an 
exercise  of  similar  abstinence.  The  numbers  were,  perhaps,  more  than 
restored,  and  it  became  possible  to  make  larger  drafts  than  had  ever 
been  taken  under  the  Russian  management  without  any  discoverable 
diminution  of  the  stock;  and  there  is  no  reason  to  suppose  that  such 
drafts  might  not  have  been  continued  indefinitely  had  not  the  destruc- 


PROPERTY   IN   THE   ALASKAN    SEAL   HERD. 


103 


tive  warfare  by  a  constantly  increasing  fleet  of  Canadian  sealers  made 
it  impossible. 

The  experience  at  the  Commander  Islands  has  been  the  same.  The 
exercise  of  art,  industry,  and  self-denial  produced  by  the  ojjeration  of 
the  same  motive  has  been  followed  by  the  reward  of  still  abundant 
herds. 

Nor  is  there  any  obstacle  in  the  way  of  a  recognition  of  a  property  in- 
terest growing  out  of  any  difficulty  in  identifying  the  Alaskan  herd 
upon  the  high  seas.  Suggestions  of  a  possible  commingling  with  the 
herds  belonging  to  the  Russian  islands  on  the  western  side  of  the  Pa- 
cific and  Bering  Sea  are  contained  in  the  Report  of  the  British  Com- 
missioners; but  these  are  coupled  with  the  admission  that  this  com- 
mingling, if  it  exist  at  all,  is  confined  to  a  few  individuals.  They  are 
supported  by  no  evidence.  The  Russian  herd  s  are  separated  by  a  broad 
tract,  hundreds  of  miles  in  width,  and  it  seems  entirely  certain  that  all 
sen'''  found  on  the  eastern  side  of  the  Pacific  and  Bering  Sea  are 
ri    nbers  of  the  Alaskan  herds. 

may  be  urged,  as  an  objection  to  the  recognition  of  a  property  in- 
terest in  the  United  States,  that  it  would  be  inconsistent  with  the  con- 
tinued pursuit  of  seals  by  the  Indians  on  the  Northwest  coast  for  the 
purposes  of  food  and  clothing.  This  consideration  deserves  respectful 
attention.  It  is  the  only  form  of  capturing  seals  upon  the  high  seas 
which  can  assert  for  itself  a  moral  foundation  under  the  law  of  nature. 
Attentif^"  ^as  more  than  once  oeen  called  in  this  argument  to  the  dif- 
ferent degrees  of  the  extension  of  the  institution  of  property  in  barbaric 
and  in  civilized  life.  The  necessities  of  society,  everywhere  and  at  all 
times  the  measure  of  the  extension  of  the  institution,  do  not  in  barbaric 
life  require  a  recognition  of  property  in  but  comparatively  few  things. 
With  a  scanty  and  sparse  population,  little  is  required  by  way  of  cul- 
tivating the  earth  or  its  animals;  and  bo*,h  can  be,  and  generally  are, 
allowed  to  remain  in  a  wild  condition,  open  to  indiscriminate  use.  A 
full  supply  of  the  wants  of  such  society  in  respect  to  most  animals  can 
be  had  by  indiscriminate  killing,  without  in  the  least  degree  endan- 
gering the  stock.  That  peril  is  one  which  civilization  brings  along 
with  it;  and,  as  we  have  seen,  the  safeguard  comes  also  in  the  shape 
of  the  extension  of  the  institution  of  property.  Nothing  better  illus- 
trates this  than  the  case  of  the  fur-seals.  Before  the  occupation  of  its 
haunts  by  civilized  nations,  the  only  draft  made  by  man  upon  the  pro- 
diKiottS  herds  was  limited  to  a  number  sufficient  to  supply  the  wants 


104 


ARGUMENT   OF   THE   UNITED   STATES. 


of  a  few  Inindred  people.  But,  after  such  occupatiou,  through  the  in- 
struineiitiility  of  commerce,  the  wliole  world  made  its  attack.  This 
demand,  of  course,  could  not  be  supplied  consistently  with  the  preser- 
vation of  the  si)ocies  without  an  immediate  change  from  barbaric  to 
civilized  methods;  that  is  to  say,  from  indiscriminate  capture,  which 
threatened  the  stock,  to  a  selective  capture  conflned  to  the  increase. 

But  this  condition  creates  no  difBculty.  The  demand  thus  made  is 
comparatively  insignificant,  and  does  not  threaten  any  danger.  The 
United  States  hnve  no  desire  or  intention  to  cut  off  from  these  rude 
inhabitants  any  of  their  means  of  subsistahce.  Their  history  and  cir- 
cumstances have  made  tliem  familiar  with  tlie  survivals  of  barbaric  life 
in  the  midst  of  civilized  conditions.  They  have  steadily  pursued  the 
policy  of  securing  to  such  tribes,  as  long  as  possible,  the  benefit  of  the 
sources  of  subsistance  upon  which  they  had  been  accustomed  to  rely. 
They  suppose  it  may  be  safely  left  to  them  to  insure  to  these  people 
such  an  enjoyment  of  the  seal  herds  as  they  originally  had,  or  the 
property  interest  which  they  justly  claim  may  be  recognized  subject  to 
a  reasonable  use  by  tlie  Indians  upon  the  coast,  such  as  they  have  here- 
tofore enjoyed.  But,  surely,  this  claim  of  the  Indians  can  not  be  made 
a  cover  for  the  prosecution  of  a  destructive  warfare  upon  a  valuable 
race  of  animals.  The  civilized  man  can  not  assert  for  himself  the 
license  of  the  barbarian.  If  that  can  not  be  confined  to  the  barbarian, 
it  must  y  given  up  altogether.  The  exacting  demands  of  civilization 
must  be  met  by  the  methods  of  civilization. 

It  may  be  asked  whether  the  claim  made  by  the  United  States  goes 
to  the  extent  of  asserting  a  legal  right  of  property  in  any  individual 
seal  which  may  at  any  time  be  found  in  the  seas  between  the  Pribilof 
Islands  at  the  north  and  the  coast  of  California  at  the  south?  And 
whether  they  would  insist  that  in  the  case  of  any  seal  captured  any- 
where within  those  limits  by  any  person  other  than  a  native  Indian,  and 
for  purposes  of  scientific  curiosity,  or  to  satisfy  hunger,  a  trespass  had 
been  committed  upon  the  property  f  the  United  States,  and  sin  action 
might  be  maintainr  .  in  tlieir  name  in  a  municipal  tribunal  to  recover 
damages,  or  for  the  recovery  of  the  skin  of  the  animal,  if  it  should  any- 
where be  found.  Tiio  United  States  do  not  insist  upon  this  extreme 
point,  because  it  is  not  necessary  to  insist  upon  it.  All  that  is  needed 
for  their  purposes  is  that  their  property  interest  in  the  herds  should  be  so 
far  recognized  as  to  justify  a  prohibition  by  them  of  any  destructive  pur- 
suit  of  the  animal  calculated  to  ii\jure  the  industry  prosecuted  by  them 


PROPERTY    IN   THE    ALASKAN   SEAL    HERD. 


106 


ou  tlio  islands  upon  the  basis  of  their  property  interest.  Tlie  concep- 
tion of  Si  property  interest  in  the  herd,  as  distinct  from  a  particular  title 
to  every  seal  composing  the  herd,  is  clear  and  intelligible;  and  a  rec- 
ognition of  this  would  enable  the  United  States  to  adoi)t  any  reasonable 
measures  for  the  protection  of  such  interest. 

It  is,  of  course,  necessary  to  an  actual  appropriation  of  property 
that  the  intent  to  appropriate  should  be  evidenced  by  some  act.  This 
requirement  has  been  fully  satisfied  by  the  United  States.  Every  act 
by  which  that  intent  could  be  manifested  has  been  performed.  They 
have,  in  every  practicable  form,  exercised  art,  industry,  and  self-denial 
in  protecting  the  seals  upon  their  soil  and  gathering  the  increase  for 
the  purposes  of  commerce  with  the  world,  and  they  have  in  all  prac- 
ticable forms,  by  their  laws,  by  executive  proclamation,  and  the  ex- 
ercise of  force  upon  the  high  seas,  endeavored  to  prohibit  all  invasions 
of  their  property  interest. 

It  is  believed  that  of  the  three  conditions  hereinbefore  mentioned  as 
requisite  to  assert  a  right  of  property  in  the  seal  herd,  a  compliance 
with  the  only  one  wiiich  can  be  t»ie  subject  of  debate,  namely,  suscepti- 
bility of  appropriation,  has  now  been  fully  established ;  and  we  need  no 
longer  delay  the  final  conclusion  that  the  United  States,  and  they 
alone,  having  such  a  control  over  the  Alaskan  seal  herd  as  enables 
them  by  the  practice  of  art,  industry,  and  self  denial  to  make  the  entire 
product  fully  available  for  the  wants  of  mankind  without  diminishing 
the  stock,  and  having  asserted  this  control  and  exercised  the  requisite 
art,  industry,  and  self-denial  in  order  to  accomplish  that  great  end, 
have,  under  principles  everywhere  recognized,  both  in  the  law  of  nature 
and  in  the  concurring  municipal  jurisprudence  of  aU  civilized  States,  a 
property  interest  in  that  herd. 

It  is  a  satisfaction  to  the  undersigned,  and,  as  they  conceive,  no 
unimportant  feature  of  their  argument,  that  in  the  foregoing  discus- 
sion  no  selfish  pretension  had  been  asserted  by  the  United  States,  nor 
one  in  the  least  degree  hostile  to  Great  Britain.  The  Government  of 
the  United  States  neitfc  r  asserts  any  principle,  nor  asks  for  any  ad- 
judication which  is  not  for  the  common  interest  of  the  world  as  nuich 
as  for  itself.  The  fundamental  truth  that  this  useful  race  of  animals 
is  the  property  of  mankind  is  not  changed  by  the  circumstance  that 
the  custody  and  defense  of  it  have  fallen  to  the  lot  of  the  United 
States.  Their  appearance  as  a  litigant  in  this  forum  may  be  said,  in  a 
very  just  sense,  to  be  fortuitous.    The  real  controversy   is  between 


m 


iii 


106 


ARGUMENT   OF   THE   UNITED    STATES. 


! 


those,  wherever  they  may  dwell,  who  tcant  the  seals,  and  the  Canadian 
pelagic  sealers,  who  are  threatening  the  extermination  of  them.  If  that 
danger  can  be  averted  by  the  metliod  which  alone  can  be  eflfective,  the 
recognition  of  a  property  interest  in  the  United  States,  the  benefit  will 
accrue  equally  to  all.  The  sealskins  will  be  furnished  to  the  citizens 
of  Great  Britain  and  of  all  other  nations  upon  the  same  terms  upon 
which  they  are  obtainable  by  citizens  of  the  United  States.  The  large 
interests  of  Great  Britain  in  the  manufacture  of  the  skins  will  be  re- 
lieved from  the  peril  which  threatens  them.  None  will  be  losers,  save 
those  who  are  engaged  in  the  cruel  pursuit,  forbidden  by  the  law  of 
natnre,  and  by  every  sentiment  of  humanity,  of  destroying  this  useftil 
race  of  animals.  And  the  loss  even  to  them  would  be  comparatively 
small,  for  the  pursuit  under  present  conditions  can  not  continue  for 
more  than  a  \  ery  short  period. 

The  United  States  may,  indeed,  ..erive  a  profit  peculiar  to  themselves 
as  the  cultivators  of  the  herd;  but  this  is  the  just  reward  of  their  in- 
dustry, abstinence,  and  care,  and  no  more  than  every  other  nation  in 
respect  to  products  peculiar  to  itself.  Without  these  voluntary  efforts 
the  herds  would  be  speedily  swept  away.  Their  present  existence  and 
numbers  are  absolutely  due  to  these  eflForts.  It  is  by  such  means  alone 
that  nature  makes  her  gifts  fully  available  to  their  desired  extent  to  all 
nations.  The  advantages  which,  in  the  partition  among  nations,  have 
fallen  under  the  power  of  the  United  States,  it  is  their  duty,  and  their 
duty  to  mankind,  to  improve.  The  rights  and  interests  of  mankind  are 
properly  asserted  in  this  international  forum ;  but  they  can  be  asserted 
only  through  the  United  States.  If  the  world  has  the  right,  as  it  cer- 
tainly has,  to  call  upon  that  nation  to  make  the  benefits  which  nature 
has  assigned  to  its  custody  available,  it  must  clothe  it  with  the  powers 
which  are  requisite  to  that  end. 

If  the  United  States  have,  as  has  now  been  shown,  a  property  interest 
in  the  Alaskan  herd,  the  undersigned  conceives  it  to  be  a  certain  con- 
sequence that  they  have  the  right  to  protect  it  anywhere  upon  the  high 
seas  against  injury  or  invasion,  by  sucb  reasonable  exercise  of  force  as 
may  be  necessary.  This  proposition  will  be  fully  discussed  in  connec- 
tion with  the  subject  next  to  be  considered,  of  the  rights  acquired  by 
the  United  States  in  the  sealing  industries  carried  on  by  them  upon 
the  Pribilof  Islands. 

If  the  foregoing  argument  is  successful  in  showing  that  the  United 
States  have  a  property  in  the  Alaskan  seal  herd  their  right  to  protect 


PROPERTY   TN   THE   ALASKAN   SEAL   HERD. 


107 


that  property  anywhere  upon  the  seas  where  it  and  they  have  the  right 
to  go  is  a  proposition  scarcely  open  to  question.  The  rights  of  a  nation 
of  all  descriptions  upon  the  high  seas  are  uniformly  protected  by  the 
direct  exercise  of  the  powers  of  the  nation.  There  is  no  other  way  of  pro- 
tecting them.  Theve  is  no  general  sovereign  or  tribunal  over  nations 
before  which  an  alleged  trespassing  nation  can  be  summoned  for  judg- 
ment. But  the  nature  and  extent  of  this  self-protection  will  be  fully 
discussed  under  the  next  head  of  this  argument,  devoted  to  that  aspect 
of  the  property  question  particularly  presented  by  the  sealing  industry 
maintained  by  the  United  States  upon  the  Pribilof  Islands.  If  they 
have  the  right  to  protect  that  industry  against  invasion  by  acts  com- 
mitted upon  the  high  seas,  they  have,  a  fortiorij  the  same  right-  to 
protect  t\i&i  p'oj^erly  ou  that  element. 

James  0.  Oasteb. 


108 


ABQUMEMT  OF  THE  UITITED  STATES. 


APPENDIX  TO  PART  THIRD,  DIVISION  I  (MR.  CARTER'S 

ARGUMENT). 


AUTHORITIES  UPON    THE    SUBJECT    OF   PROPERTY   IN  ANIMALS 

FERJE  NATURE. 

[From  Stnclies  in  Romnn  Law,  by  JjjtA  Mackenzie  (6th  edition),  Edinburgh  and 
London,  1886,  chapter  iii,  page  174.] 

Wild  animals. — All  wild  animals,  whether  beasts,  birds  or  fish,  fall 
under  this  rule,  so  that  even  when  they  are  caught  by  a  trespasser  on 
another  man's  land  they  belong  to  the  taker,  unless  they  are  expressly 
declared  to  be  forfeited  by  some  penal  law,  (Inst.,  2,  1,  12;  Gaius,  2, 
60-69;  Dig.,  41, 1, 3,  pr.  65).  Deer  in  a  forest,  rabbits  in  a  warren,  lisU 
in  a  pond,  or  other  wild  animals  in  the  keeping  or  possession  of  the 
first  holder  can  not  be  appropriated  by  another  unless  they  regain  their 
liberty,  in  which  case  they  are  free  to  be  again  acquired  by  occupancy. 
Tame  or  domesticated  creatures,  such  as  horses,  sheep,  potiltry,  and 
the  like,  remain  the  property  of  their  owners,  though  strayed  or  not 
confined.  The  same  rule  prevails  in  regard  to  such  wild  animals 
already  .appropriated  as  are  in  the  habit  of  returning  to  their  owners, 
such  as  pigeons,  hawks  in  pursuit  of  game,  or  bees  swarming  while 
pursued  by  their  owners  (Inst.,  2, 1, 14, 15). 

[From  Gains's  Elements  of  Roman  Law,  trannlated  by  Edward  Poste,  (2d  ed.), 

Oxford.    1875.  ] 

Seo.  68.  In  those  wild  animals,  however,  which  are  habitusited  to  go 
away  and  return,  as  pigeons,  and  bees,  and  deer,  which  habitually  visit 
the  forests  and  return,  the  rule  has  been  handed  down  that  only  the 
cessation  of  the  instinct  of  returning  is  the  terminsition  of  ownership, 
and  then  the  property  in  them  is  acquired  by  the  next  occupant;  the 
instinct  of  returning  is  held  to  be  lost  when  the  habit  of  returning  is 
discontinued. 

[From  Von  Savigny  on  Possosaion  in  the  Civil  Law,  compiled  by  Kellelier.] 

W  "^h  respect  to  the  possession  of  animals  these  rules  are  to  be  ap- 
plied thus: 

First.  Tame  animals  are  possessed  like  all  other  movables,  i.  e.,  the 
possession  of  them  ceases  when  they  can  not  be  found.  Second.  Wild 
animals  are  only  possessed  so  long  as  some  special  disposition  (custodia) 
exists  which  enables  us  actually  tx)  get  tliem  into  our  power.  It  is  not 
every  custodia,  therefore,  which  is  sufficient ;  whoever,  for  instance,  keeps 
wild  animals  in  a  park,  or  fish  in  a  lake,  has  undoubtedly  done  some- 
thing to  secure  them,  but  it  does  not  depend  on  his  mere  will,  but  on  a 
variety  of  accidents  whether  he  can  actually  catch  them  when  he 
wishes,  consequently,  possession  is  not  here  retained;  quite  otherwise 
with  fish  kept  in  a  stew,  or  animals  in  a  yard,  because  then  they  may  be 
caught  at  any  moment  (lib.  3,  sees.  14, 15,  de  poss).    Third.  Wild  beasts, 


APPENDIX   TO   PART   THIRD DIVISION   I. 


109 


tamed  artiflcinlly,  are  likened  to  domesticated  animals  so  lonfj  as  tliey 
retain  the  habit  of  returninfj  to  the  spot  whei-e  their  possessor  keeps 
them  {doneo  animum,  i.  e.,  consuetudinem,  revertendi  habent). 

[From  Puffeiulorf,  Law  of  Nature  nnd  Nations,  lib.  in,  cap.  1,  sec.  3.] 

Although  a  loss  sec'ms  to  refer  properly  to  x»roperty,  yet  by  ns  it  Mill 
be  gener:illy  accepted  as  embracing  all  injury  that  relates  to  th(^  body, 
fame  and  modesty  of  man.  tSo  it  signifies  every  inj'iry,  corruption, 
diminution  or  removal  of  that  which  is  ours,  or  intertteption  of  tluit, 
which  in  perfect  .justice  we  ought  to  have;  whether  giv«Mi  by  nature  or 
conceded  by  an  antecedent  hunuui  act  or  law;  or,  Anally,  the  omissiou 
or  denial  of  a  claim  which  another  may  have  upon  us  by  actual  obliga- 
tion. To  this  tends  the  13th  Declaniatiou  of  Quintilian,  where  he 
plainly  shows  that  one  hsul  inflicted  a  loss  who  poisoned  the  flowers  of 
his  own  garden  whereby  his  neighbor's  bees  perished.  Yet  the  con- 
vincing reason  consists  in  this:  Since  all  agree  that  bees  are  a  wander- 
ing kind  of  animate  life,  and  because  they  can  in  no  way  be  accus- 
tomed to  take  their  food  from  a  given  place;  therefore,  whenever  there 
is  a  right  of  taking  tiiem,  there  also,  it  is  understood,  is  laid  a  gen- 
eral injunction  to  be  observed  by  all  neighbors,  to  permit  bees  to  wander 
everywhere  without  hindrance  from  anyone. 

[From  Bracton,  lib.  ii,  cap.  1,] 

The  dominion  over  things  by  natural  right  or  by  the  right  of  nations 
is  acquired  in  various  ways.  In  the  flrst  i)lace,  through  the  first  taking 
of  those  things  which  belong  to  no  person,  and  which  now  belong  to  the 
King  by  civil  right,  and  are  not  common  as  of  olden  time,  such,  for  in- 
stance, as  wild  beasts,  birds,  and  fish,  and  all  animals  which  are  born  on 
the  earth,  or  in  the  sea,  or  in  the  sky,  or  in  the  air;  wherever  they  may 
be  captured  and  wherever  they  shall  have  been  captured,  they  begin  to 
be  mine  because  they  are  coerced  under  my  keeping,  and  by  the  same 
reason,  if  they  escape  from  my  keeping,  and  recover  their  natural 
liberty  they  cease  to  be  mine,  and  again  belong  to  the  first  taker.  But 
they  recover  their  natural  liberty,  then,  when  they  have  either  escaped 
from  my  sight  in  the  free  air,  and  are  no  longer  in  my  keeping,  or  when 
tiiey  are  within  my  sight  under  such  circumstances,  that  it  is  impossi- 
ble for  me  to  overtake  them. 

Occupation  also  comprises  fishing,  hunting,  and  capturing;  pursuit 
alone  does  not  make  a  thing  mine,  for  although  I  have  wounded  a  wild 
l)east  so  that  it  may  be  captured,  nevertheless  it  is  not  mine  unless  I 
capture  it.  On  the  c(mtrary  it  will  belong  to  him  who  flrst  takes  it, 
for  many  things  usually  happen  to  prevent  the  capturing  it.  Likewise, 
if  a  wild  boar  falls  into  a  net  which  I  have  spread  for  hunting,  and  I 
have  carried  it  off,  having  with  nuich  exertion  extracted  it  from  the 
net,  it  will  be  mine,  if  it  shall  have  come  into  my  powei,  unless  custom 
or  privilege  rules  to  the  contrary.  Occupation  also  includes  shutting 
up,  as  in  the  case  of  bees,  which  are  wild  by  nature,  for  if  they  should 
have  settled  on  my  tree  they  would  not  be  any  the  more  mine,  until  I 
have  shut  them  up  in  a  hive,  than  birds  which  have  made  a  nest  in  my 
tree,  and  therefore  if  another  person  shall  shut  them  up,  he  will  have 
the  dominion  over  them.  A  swarm,  also,  which  has  flown  away  out  of 
my  hive,  is  so  long  understood  to  be  mine  as  long  as  it  is  in  my  sight, 
and  the  overtaking  of  it  is  not  impossible,  otherwise  they  belong  to  the 
first  taker;  but  if  a  person  shall  capture  them,  he  does  not  niake  thorn 
his  own  if  he  shall  know  that  they  are  another's,  but  he  commits  a  theft 


>F  ... 


m 

Hi 


110 


ARGUMENT   OF  THE  nMlT£D  STATES. 


unless  he  has  the  intention  to  restore  them.  And  these  things  ure  true, 
unless  sometimes  from  custom  in  some  parts  the  practice  is  otherwise. 
What  has  been  said  above  applies  to  animals  which  have  remained 
at  all  times  wild;  and  if  wild  animals  have  been  tinned,  and  they  by 
habit  go  out  and  return,  fly  away,  and  fly  back,  such  as  deer,  swans, 
seafowls,  and  doves,  and  sucli  like,  anotlier  rule  has  been  approved, 
that  they  are  so  long  considered  as  ours  as  l(»ng  as  they  have  tlie  dis- 
]K)sition  to  retiun;  for  if  they  have  no  disposition  to  return  they  cease 
to  be  ours.  But  they  seem  to  cease  to  have  the  disposition  to  return 
when  they  have  abandoned  the  habit  of  returning;  and  the  same  is  said 
of  fowls  and  geese  which  have  become  wild  after  being  tamed.  But  a 
third  rule  has  been  a])proved  in  the  case  of  domestic  animals,  that  al- 
though tanui  geese  and  fowls  have  escaped  out  of  my  sight,  neverthe- 
less, in  whatever  place  they  may  be,  they  are  understood  to  be  mine, 
and  he  commits  a  theft  who  retains  them  with  the  intention  of  making 
gain  with  them.  This  kind  of  occupation  also  takes  place  in  tlio  .se 
of  those  things  which  are  captured  from  the  enemy,  as,  for  instai  ,  if 
tree  men  have  been  reduced  into  slavery  and  shall  e8cai)e  frou,  )ur 
power  they  recover  their  former  state.  Likewise  the  same  species  of 
occupation  has  a  place  in  the  case  of  those  things  which  are  common, 
as  in  the  case  of  the  sea  and  the  seashore,  in  the  case  of  stones  and 
gems  and  other  tilings  tVmnd  on  the  seashore.  Tlic  same  rule  applies 
to  islands  which  spring  up  in  the  sea  and  to  things  left  derelict,  unless 
there  is  a  custom  to  the  contrary  in  favor  of  the  public  treasury. 

[From  Bowyer,  Modern  Civil  Law,  page  72.] 

Wild  animals,  therefore,  and  birds,  and  fish,  and  all  animals  that  are 
produced  in  the  sea,  the  heavens,  aiul  the  earth,  become  the  property, 
by  natural  law,  of  whoever  takes  possession  of  them.  The  reason  of 
this  is,  that  wl»atever  is  the  proi>erty  of  no  man  becomes,  by  natural 
reason,  the  property  of  whoever  occupies  it. 

It  is  the  same  whether  the  animals  or  birds  be  caught  on  the  prem- 
ises of  the  catcher  or  on  those  of  another.  But  if  any  one  enters  the 
land  of  another  to  sport  or  hunt,  he  may  be  warned  oft'  by  the  owner 
of  the  land.  When  you  have  caught  any  of  these  animals  it  remains 
yours  so  long  as  it  is  under  the  restraint  of  your  custody.  But  as  sooji 
as  it  has  escaped  from  your  keeping  and  has  restored  itself  to  natural 
liberty,  it  ceases  to  be  yours,  and  again  becomes  the  property  of  who- 
ever occupies  it.  The  animal  is  understood  to  recover  its  natural  lib- 
erty when  it  has  vanished  from  your  sight,  or  is  before  your  eyes  under 
such  circumstances  that  pursuit  would  be  difficult. 

Here  we  find  the  celebrated  maxim  of  Gajus:  Quod  nullius  est,  id  ra- 
tione  naturali  occupanti  conceditur.  It  is  founded  on  the  following 
doctrine:  Granting  the  institution  of  the  riglits  of  property  among 
mankind,  those  things  are  each  man's  property  which  no  other  man  has 
a  right  to  take  from  him.  Now,  no  one  has  a  right  to  that  which  is  res 
nuUitiSf  consequently,  whoever  possesses  rem  nullius  jjossesses  that 
which  no  one  has  a  right  to  take  from  him.   It  is  therefore  his  property. 

But  this  general  right  of  acquiring  things  by  occupancy  is  subject  to 
an  important  qualification.  Grotius  justly  argues  that  it  is  not  an  ab- 
solute right,  for  though  it  is  indeed  founded  on  natural  law,  it  is  mat- 
ter of  permissive  law,  and  not  one  which  requires  that  full  liberty 
should  be  left  to  men  to  avail  themselves  of  it,  since  such  liberty  is  un- 
necessary in  many  cases  for  the  welfare  of  mankind,  and  may  even,  as 
Blackstoue  observes,  be  prejudicial  to  the  peace  of  society  if  it  be  not 


APPENDIX    TO   PAKT  THIRD — DIVISION   L 


111 


limited  by  poHitiv«  law.  l{ail)«yrac  also  arjfiu's  that  wliero  a  country  is 
taken  ])OHH«88ion  of  by  a  body  of  men,  it  bt'cnnics  tlio  property  of  that 
body  oroftlio  periwm  who  represents  them,  and  that  tiiereloro  the  riyht 
of  the  imlividual  members  t<>  take  possession  of  portions  of  it  or  any  of 
tlio  thinfjH  therein  contained,  nuiy  bo  restricted  or  tak<'n  away,  accord- 
ing as  the  welfare  of  the  community  may  demand.  These  i)rinciples 
are  api)lieable  to  the  wliole  jurisprudence  of  a<(piisitu>n  by  occupancy. 

The  ac«iuisition  of  things  tauf^ible  must  be  made  corpore  ct  animo — 
that  is  to  say,  by  an  tmtward  act  signifying  an  intention  to  possess. 
Tlie  necessity  of  an  outward  act  to  commence  holding  a  thing  in  do- 
uwnion  is  founded  on  the  principle  that  a  will  or  intentitm  can  iu)t  have 
legal  efl'ect  without  an  outward  act  declaring  that  intc'ution,  and  on 
the  other  hand  no  mau  can  be  said  to  have  the  dominion  over  a  vhing 
which  he  has  uo  intention  of  possessing  as.  his.  Thus  a  nniu  eau  not 
deprive  others  of  their  right  to  take  possession  of  vacant  projier'y  by 
merely  considering  it  as  his,  without  actually  appropriating  it  to  him- 
self; and  if  he  possesses  it  without  any  will  of  apiaopriatiug  it  to  him- 
self it  can  not  be  held  to  have  ceased  to  be  res  nuUiuH. 

The  intention  to  jjossess  is  to  be  pr«;sunied  whenever  the  outward  act 
shows  such  a  iuleutiou,  for  that  is  to  be  presumed  which  is  most 
probable. 

The  outward  act  or  possession  need  not,  however,  be  manual,  for  any 
species  of  possession,  or,  as  the  ancients  expressed  it,  custodia,  ia  a 
sut!!  -^nt  appropriation. 

The  general  i)rinciple  respecting  the  acquisition  of  animals  ferce 
naturw  is,  that  it  is  absurd  to  hold  anything  to  be  a  num's  property 
which  is  entirely  out  of  his  power.  But  Grotius  limits  the  application 
of  that  principle  to  the  acquisition  of  things,  and  therefore  justly  dis- 
sents from  the  doctrine  of  Gajus  given  above,  that  the  animal  becomes 
again  res  nulUus  immediately  on  recovering  its  liberty,  if  it  be  diflicult 
for  the  lirst  occupant  to  retake  it.  He  argues  that  wiien  a  thing  has 
become  the  property  of  any  one,  whether  it  be  afterwards  taken  from 
him  by  the  act  of  man,  or  whether  he  lose  it  from  a  natural  cause, 
he  does  not  necessarily  lose  his  right  to  it  together  with  the  possession ; 
but  that  it  if  reasonable  to  presume  that  the  proprietor  of  a  wild  ani- 
mal must  have  venfiUJiced  his  right  to  it  when  the  aniuuil  is  gone 
beyond  the  hope  of  recovei  y  and  where  it  could  not  be  identitied.  lie, 
therefore,  argues  that  the  right  of  ownership  to  a  wild  animal  may  be 
rendered  lasting,  notwithstanding  its  flight,  by  a  mark  or  other  artifi- 
cial sign  by  which  the  creature  may  bo  recognized. 

With  regard  to  flsh,  Voet  argues  that  when  they  are  included  within 
artificial  boundaries  they  are  private  property,  but  that  when  they  are 
in  a  lake  or  other  large  piece  of  natural  water,  though  the  proprietor 
of  the  land  may  have  a  right  of  fishery  there,  yet  the  iish  are  in  their 
natural  state  of  liberty,  and  consequently  they  can  not  be  his  property 
until  he  has  brought  them  within  his  power  by  catching  them. 

It  was  disi)uted  among  the  ancient  Komau  juriscousulti  whether  a, 
wild  animal  becomes  immediately  tlie  property  of  whoever  wounds  it 
so  that  it  can  be  secured,  or  whether  it  becomes  the  property  of  him 
only  who  actually  secures  it.  And  Justinian  confirmed  the  latter 
opinion,  because  many  circumstances  might  occur  to  prevent  the 
woiinded  animal  being  taken  b^  him  who  wounded  it. 

Bees,  also,  are  of  a  wild  nature,  and,  therefore,  they  no  more  become 
the  property  of  the  owner  of  the  soil  by  swarming  in  his  trees  th;i  n  do  the 
birds  which  build  in  them ;  and  they  are  not  his  unless  he  inclose  them  in 
a  hive.   Couseiiucntly,  whoever  hives  them  makes  them  his  own.   AmA 


.1  ,.. 


112 


ARGUMENT   OF    THE    UNITED    STATES. 


while  tliey  are  wild  any  one  may  cut  off  the  honeycombs,  though  the 
owner  of  the  land  may  prevent  this  by  warning  off  trespassers.  And 
a  swarm  fiying  from  a  hive  belongs  to  the  owner  of  the  hive  so  long  as 
it  is  within  his  sight,  but  otherwise  it  is  the  property  of  whoever  takes 
possession  of  it. 

With  regard  to  creatures  which  have  the  habit  of  going  and  return- 
ing, such  as  pigeons,  they  remain  the  property  of  those  to  whom  they 
belong  so  long  as  they  retain  the  anhmis  revertendi  or  disposition  to 
return.  But  when  they  lose  that  disposition  they  become  the  property 
of  whomsoever  secures  them.  And  they  nuist  be  held  to  have  lost  the 
animus  revertendi  as  soon  iis  they  have  lost  the  habit  of  returning. 
8uoh  are  the  doctrines  of  the  Eoman  law,  which  are  conformable  to  the 
English  law,  with  the  qualification  of  Grotius,  which  is  applicable  to 
the  case  of  all  animals  ferw  natur(v,  that  is  to  say,  that  a  mark  or 
collar  prevents  the  rights  of  the  proprietor  of  a  wild  animal  being  ex- 
tinguished by  its  escape  from  liis  sight  and  pursuit. 

[From  Cooper's  Justiuian  (lib.  u,  tit.  1,  sees.  11  et  seg).] 

Seo.  11.  De  Behus  Singtilortim. — There  are  various  means  by  which 
things  become  private  jn-operty.  Of  some  we  obtain  dominion  by  the 
law  of  nature,  which  (as  we  have  already  observed)  is  also  called  the 
law  of  nations;  of  others,  by  the  civil  law.  But  it  will  be  most  con- 
venient to  begin  from  the  more  ancient  law;  that  law,  which  nature 
established  at  the  birth  of  mankind;  for  civil  laws  could  then  only 
begin  to  exist  when  cities  began  to  be  built,  magistracies  to  be  created, 
and  laws  to  be  written. 

Seo.  12.  I)e  Occupatione  Ferarxim. — ^Wild  beasts,  birds,  fish  and  all 
animals,  bred  either  in  the  sea,  the  air,  or  upon  the  earth,  so  soon  as 
they  are  taken,  become  by  the  law  of  nations,  tl-.e  i)roperty  of  the  captor ; 
for  natural  reason  gives  to  the  first  occupant,  that  which  had  no 
previous  owner;  and  it  is  not  material  whether  the  man  takes  wild 
beasts  or  birds  upon  his  own,  or  upon  the  ground  of  another}  although 
whoever  hath  entered  into  the  ground  of  another  for  the  sake  of  hunting 
or  fowling,  might  have  been  prohibited  by  the  proprietor,  if  he  had 
foreseen  the  intent.  Whatever  of  this  kind  you  take,  is  regarded  as 
your  property  while  it  remains  under  your  coercion;  but  when  it  hath 
escaped  your  custody,  and  recover  3d  its  natural  liberty,  it  ceases  to  be 
yours  and  becomes  the  property  of  the  first  who  soizes  it.  It  is  under- 
stood to  have  recovered  its  natural  liberty,  if  it  hath  escaped  your 
sight;  or  although  not  out  of  sight,  yet  if  it  can  not  be  pursued  and 
retaken  without  great  difhculty. 

Seo.  13.  De  Ynlneratione. — It  hath  been  questioned,  whether  a  wild 
beast  belongs  to  him,  by  whom  it  hath  been  so  wounded,  that  it  may  be 
taken,  -tind,  in  the  opinion  of  some,  it  doth  so,  as  long  as  he  pursues 
it;  but,  if  he  quits  the  pursuit,  it  ceases  to  be  lii;.'.,  and  again  be<'omes 
the  right  of  the  first  occupant.  Others  have  thought  that  property  in 
a  wild  beast  must  attach  to  the  actual  taking  it.  We  confirm  this 
latter  opinion;  because  many  accidents  happen,  which  prevent  the 
ca])ture. 

Seo.  14.  BeApibus. — Bees  also  arewild  by  nature;  therefore,  although 
they  swarm  upon  your  tree,  they  are  not  reputed,  until  they  are 
hived  by  you,  to  be  more  your  property  than  the  birds  which  have 
nests  there;  so,  if  any  other  person  inclose  them  in  a  hive,  he  becomes 
their  proi)rietor.  Their  honeycombs  also,  if  any,  become  the  property 
of  him  who  takes  them;  but  clearly,  if  you  observe  any  person  entering 
into  your  ground,  the  object  untouched,  you  may  justly  hinder  him.    A 


APPENDIX   TO   PART   THIRD DIVISION   I, 


113 


swarm  which  hath  flown  from  your  hive  is  still  reputed  to  continue 
youra  as  long  as  it  is  in  sight  and  may  e?isily  be  pursued,  but,  in  any 
other  case  it  will  become  the  property  oi  the  occupant. 

Seo.  15.  De  Pavonihus,  et  Columbis,  et  Cecteris  Animalibus  Mansue- 
foctis. — Peacocks  and  pigeons  are  also  naturally  wild;  nor  is  it  any 
objection  that  after  every  flight,  it  is  their  custom  to  return;  for  bees 
that  are  naturally  wild  do  so  too.  Some  have  had  deer  so  tame  that 
they  would  go  to  the  woods  and  return  at  regular  periods;  yet  no  one 
denies  but  that  deer  are  wild  by  nature.  But,  with  respect  to  animals, 
Avhich  go  and  return  customarily,  the  rule  is,  that  they  are  considered 
yours,  as  long  as  they  retain  an  inclination  to  return;  but,  if  tliis 
ceases,  they  cease  to  be  yours;  and  will  again  become  the  property  of 
those  who  take  them. 


[The  Case  of  Swans.    (7  Coke,  15  1). )] 

It  was  decided  that  a  pi'escription  to  have  all  wild  swans  which  are 
feroi  nattircc,  and  not  marked,  building  their  nests,  breeding,  frequent- 
ing within  a  particular  creek,  is  not  good.  For  "  the  prescri])tion  was 
insufficient,  for  the  effect  of  the  prescription  is  to  have  all  wild  swans, 
which  arefercv  natunc,  within  the  said  creek.  Aiul  sucli  prescription 
for  a  warren  would  be  insufficient,  as,  for  example,  to  have  all  part- 
ridges nidificantes  gig)ientes,  and  frequenting  Avithin  his  manor.  But 
he  ought  to  say  to  have  free  warren  of  them  witlun  his  manor;  he  can 
not  have  them  jure  privileijii  but  so  long  as  they  are  within  the  place. 
But  it  was  resolved  that  if  the  defendants  had  alleged  that  within  the 
said  creek  there  had  been  time  out  of  mind  a  game  of  wild  swans  not 
marked,  building  and  bleeding;  and  then  had  ijrescribed,  that  such 
abbot  and  all  his  predecess(,is  hiid  used  at  all  times  to  have  and  to  take 
to  their  use  some  of  the  said  game  of  wild  swans  and  their  cignets 
within  the  said  creek,  it  had  been  good;  for  all  those  swais  are  royal 
fowls,  yet  in  such  manner  a  man  may  prescribe  in  them;  for  tliat  may 
have  a  lawful  begirning  by  the  King's  grant.  For  in  the  3()th  Edward 
III  the  King  granted  to  0.  W.  ali  wild  swans  unmarked  between  Ox- 
ford and  London  for  seven  years.  A  like  grant  was  made  of  wild  swans 
unmarked  in  the  County  of  Cambridge  to  Bereford,  K.  T.  G.,  by  which 
it  appears  that  the  King  may  grant  wild  swans  unmarked;  and  by 
consequence  a  man  may  prescribe  in  them  in  a  certain  place  because  it 
may  have  a  lawful  beginning.  And  a  man  may  prescribe  to  have  a 
royal  flsh  within  his  manor  as  it  is  held  in  39th  Edward  III,  35,  for  the 
reason  aforersaid  and  yet  without  prescription  they  do  belong  to  the 
King  by  his  prerogative." 

In  the  same  case  it  was  said  that  there  sire  three  manner  of  property 
lights;  i)roperty  absolute,  i)roperty  qualified,  property  possessory. 
I'loperty  qusilifled  and  possessory  a  man  may  have  in  those  animals 
which  are  fcrce  naturce,  and  to  such  property  a  man  may  attain  by  two 
ways:  by  industry,  or  by  ratione  hnjyotentiw  et  loci.  By  industry  as  by 
taking  thi'm  or  by  making  them  mamueta  or  domentiea.  But  m  those 
which  nre  fera;  nattiro)  and  by  industry  are  made  tamo  a  man  hath  but 
a  qualifled  property  in  them,  namely,  so  long  as  tiiey  remain  tame,  for 
if  they  do  att.ain  to  their  natural  liberty  and  Yinve  not  animus rcvertcmli, 
the  property  is  lost.  Ratione  impotentice  et  loei  as  if  a  man  has  young 
goshawks  or  the  like  which  are  fercenaturw  and  they  build  in  my  land, 
Ihave  possessory  property  in  them,  for  if  one  takes  them  when  they  can 
notfly  the  owner  of  the  soil  shall  have  an  aci-./U  of  trespass.  But  when  a 
man  hath  savage  beasts  ratione  ^yrivilegii,  as  by  reasou  of  a  park,  warreu 
14741) 8 


:i 


>' 


114 


ARGUMENT   OP   THE   UNITED   STATES. 


' 


&c.,  he  hath  not  any  property  in  the  deor,  or  conies,  or  pheasants,  there- 
lore  in  his  action  he  shall  not  say  suos,  for  he  hath  no  property  in  them 
and  they  do  belong  to  him  for  his  game  and  pleasure  so  long  as  they 
remain  in  the  privileged  ijlace. 

It  was  resolved  that  all  white  swans  not  marked,  which  have  gained 
their  natural  liberty,  and  are  swimming  in  an  open  and  common  river, 
might  be  seized  to  the  King's  use  by  his  prerogative,  because  VolatUia 
{quw  sunt /erw  naturw)  alia  sunt  regalittj  alia  comviunia;  *  *  •  as 
a  swan  is  a  royal  fowl;  and  all  those,  the  property  whereof  is  not 
known,  do  belong  to  the  King  by  his  prerogative;  and  so  whales,  and 
sturgeons,  are  royal  fish,  and  belong  to  the  King  by  his  prerogative. 
•  •  •  But  it  was  resolved  also  that  the  subject  might  have  prop- 
erty in  white  swans  not  marked,  as  some  may  have  swans  not  marked 
in  his  private  waters,  the  property  of  which  belowgs  to  him  and  not 
to  the  King;  and  if  they  escape  out  of  his  private  waters  into  an 
open  and  common  river,  he  may  bring  them  back  and  take  them  again. 
And  therewith  agreeth  Bracton  (lib.  2,  c.  1,  fol.  9):  Si  autem  ani 
malia  /era  facta  fuerint  mansueta,  et  ex  consuetudine  eunt  et  redeunt, 
volant  ct  revolani,  {ut  sunt  cervi,  cigni,  pavones,  et  coUtmbce,  et  hujus- 
modi)  eousque  nostra  intelligantur  quamdiu  habuerint  aniinum  revertendi. 
But  if  they  have  gained  their  natural  liberty,  and  are  swimming  in 
open  and  common  rivers,  the  King's  oflScer  may  seize  them  in  the  open 
and  common  river  for  the  King;  for  one  white  swan  without  such  pur- 
suit as  aforesaid  can  not  be  known  from  another ;  and  when  the  prop- 
erty of  a  swan  can  not  be  known,  the  same  being  of  its  nature  a  fowl 
royal,  doth  belong  to  the  King ;  and  in  this  case  the  book  of  7  H,  6, 27,  b, 
was  vouched,  where  Sir  John  Tiptoft  brought  an  action  of  trespass  for 
wrongful  taking  of  Ms  swan  s ;  the  defendant  pleaded  that  he  was  seized 
of  the  lordship  of  S,  within  which  lordship  all  those  whose  estate  he 
hath  in  the  said  lordship  had  had  time  out  of  mind  all  estrays  being 
within  the  same  manor;  and  we  say,  that  the  said  swans  were  estraying 
at  the  time  in  the  place  where,  etc.,  and  we  as  landlords  did  seize  and 
make  proclauiations  in  fairs  and  markets;  and  so  soon  as  we  had  notice 
that  they  were  your  swans,  we  delivered  them  to  you  at  such  a  place. 

The  plaintiff  replied  that  he  was  seized  of  the  manor  of  B,  joining 
to  the  lordshij)  of  S,  and  we  say,  that  we  and  our  ancestors,  and  all 
those,  etc.,  have  used  time  out  of  mind  to  have  swans  swimming 
tniough  ail  the  lordship  of  S,  and  we  jay,  that  long  time  before  the 
taking  we  put  them  in  there,  and  gave  notice  of  them  to  the  defendant 
that  they  were  our  swans,  and  prayed  his  damages.  And  the  opinion 
of  Strange  there  was  well  approved  by  the  court,  that  the  replication 
was  good ;  for  when  the  i)laintiff  may  lawfully  put  his  swans  there, 
they  cannot  be  estrays,  no  more  than  the  cattle  of  any  one  can  be 
estrays  in  such  place  where  they  ought  to  have  common;  because  they 
are  there  where  the  owner  hath  an  interest  to  put  them,  and  in  which 
place  they  m  -  be  without  negligence  or  laches  of  the  owner.  Out  of 
which  case  t^  ^se  points  were  observed  concerning  swans. 

1.  That  every  ouo  who  hath  swans  within  his  manor — that  is  to  say, 
within  his  private  waters — hath  a  property  in  them,  for  the  writ  of 
trespass  was  of  wrongful  taking  his  swans,  scil.     Quare  cignos  suos,  et«. 

2.  That  one  may  prescribe  to  have  a  game  of  swans  within  his  manor, 
as  well  as  a  warren  or  park. 

3.  That  he  who  hath  such  a  game  of  swans  may  prescribe  that  his 
swans  may  swim  within  the  manor  of  another. 

4.  That  a  swan  may  be  on  estray,  and  so  can  not  any  other  fowl,  as  I 
have  read  in  any  book. 


APPENDIX  TO  PART   THIRD — DIVISION  I. 
[Child  V.  Greenliill  (3  Croke,  553).] 


115 


Trespass  for  entering  and  breaking  plain tilfs  close  and  fishing  and 
taking  fish  in  bis  seveial  fishery.  Contended  for  the  defendant  that  he 
could  not  say  "his"  fishes,  for  he  hath  not  any  property  in  the  fish 
until  he  takes  them  and  has  them  in  his  possession.  Attorneys  for 
plaintiff  maintained  that  they  were  in  his  several  fishery,  and  that  he 
might  say  "his"  fishes,  for  there  was  not  any  other  that  might  take 
them,  and  all  the  court  '.^as  of  that  opinion. 

[Keeble  i'.  Hickeriiigill,  11  East's,  574.] 

Action  upon  the  case.  Plaintift"  declares  that  he  was,  Novemher 
8,  in  the  second  year  of  the  Queen,  lawfully  possessed  of  a  close 
of  land  called  Minott's  Meadow,  et  de  quodam  vivario  vocato,  a  decoy 
pond,  to  which  divers  wild  fowl  used  to  resort  and  come;  and  the  plain- 
tiff'had,  at  his  own  costs  and  charges,  prepared  and  i)rocured  divers 
decoy  ducks,  nets,  machines,  and  other  engines  for  tlie  decoying  and 
taking  of  the  Avild  fowl,  and  enjoyed  the  benefit  in  taking  them;  the 
defendant,  knowing  which,  and  intending  to  damnify  the  plaintift"  in 
liis  vivary,  and  to  fright  and  drive  away  tlie  wild  fowl  used  to  resort 
thither,  and  deprive  him  of  his  profit,  did  on  tlie  8th  of  November,  re- 
sort to  the  head  of  the  said  i>ond  and  vivary,  and  did  discharge  six 
guns  laden  with  gunpowder,  and  with  the  noise  and  sthik  of  the  gun- 
powder did  drive  away  the  wild  fowl  then  being  in  the  pond ;  and  on  the 
11th  and  12th  days  of  November  the  defendant,  with  design  to  damnifv 
the  plaintiff,  andfriffht  airay  the  icild  fowl,  did  place  himself  with  a  gun 
near  the  vivary,  and  there  did  discharge  tlie  said  gun  several  times 
that  was  then  charged  with  the  gunpowder  against  the  said  decoy 
pond,  whereby  the  wild  fowl  were  frighted  away,  and  did  forsake  the 
said  pond.  Upon  not  guilty  pleaded,  a  verdict  was  found  for  the 
plaintiff  and  £20  damages. 

Holt,  0.  J. :  I  am  of  opuiion  that  this  action  doth  lie.  It  seems  to  bo 
new  in  its  instance,  but  is  not  new  in  the  reason  or  principle  of  it.  For, 
first,  this  using  or  making  a  decoy  i",  lawful;  secondly,  this  employ- 
ment of  his  ground  to  that  use  is  profitable  to  tlie  plaintiff",  as  is  the 
skill  and  management  of  that  employment.  As  to  the  first,  every  man 
tliat  hath  a  property  may  emi)loy  it  for  his  pleasure  and  ])rofit,  as  for 
alluring  and  procuring  decoy  ducks  to  come  to  his  pond.  To  learn  the 
trade  of  seducing  other  ducks  to  come  there  in  order  to  be  taken  is  not 
prohibited  either  by  the  law  of  the  land  or  the  moral  law;  but  it  is  as 
lawful  to  use  art  to  seduce  them,  to  catch  tlieiii,  and  destroy  them  for 
the  use  of  mankind,  as  to  kill  and  destroy  wild  fowl  or  tame  cattle.  Then 
when  a  man  useth  his  art  or  his  skill  to  take  them  to  sell  and  dispose  of 
lor  his  profit,  this  is  his  trade;  and  he  that  hinders  another  in  his  trade 
or  livelihood  is  liable  to  an  action  for  so  hindering  him. 

And  when  we  do  know  that  of  long  time  in  the  kingdom  these  arti- 
ficial contrivances  of  decoy  jwnds  and  decoy  ducks  have  been  used  for 
«Miticing  into  tliese  ponds  wild  fowl  in  order  to  be  taken  for  the  profit 
of  the  owner  of  tlie  pond,  who  is  at  the  expense  of  servants,  engines, 
and  other  management,  whereby  the  markets  of  the  nation  may  be 
furnished,  there  is  great  reason  to  give  encouragement  thereunto;  that 
the  people  who  are  so  instrumental  by  their  skill  and  industry  so  to 
furnish  the  markets  should  reap  the  benefits  and  have  their  action. 
But,  in  short,  that  which  is  the  true  reason  is  that  this  action  is  not 


I   I 


116 


AEGUMENT   OF  THE   UNITED   STATES. 


brought  to  recover  damage  for  the  loss  of  the  fowl,  but  for  the  dis- 
turbance. 

In  the  report  of  this  same  case  in  the  11th  Modern,  75,  Lord  Chief 
Justice  Holt  says :  '*  Suppose  the  defendant  had  shot  in  his  own  ground ; 
if  he  had  occasion  to  shoot  it  would  be  one  thing,  but  to  shoot  on  pur- 
pose to  damage  the  plaiutift"  is  another  thing  and  a  wrong."  It  should 
seem  to  be  as  if  he  fired  for  the  purpose  of  disturbing  the  wild  fowl  in 
his  neighbor's  decoy,  that  he  might  take  the  chance  of  benefiting- him- 
self by  shooting  them  on  the  wing  in  consequence  of  such  distuibauce. 

[Amory  v.  Flyn  (10  John.,  102).] 

In  error,  on  certiorari,  from  a  justice's  court.  Amory  brought  an 
action  of  trover  against  Flyu  before  the  justice  for  two  geese.  There 
■was  a  trial  by  jury.  The  plaintift'  proved  a  demand  of  the  geese  and  a 
refusal  by  the  defendant  unless  the  plaintiii"  would  first  pay  25  cents 
for  liquor  furnished  to  two  men,  who  had  caught  the  geese  and  i)ledged 
them  to  the  defendant  for  it.  The  geese  were  of  the  wild  kind,  but 
were  so  tame  as  to  eat  out  of  the  hand.  They  had  strayed  away  twice 
before,  and  did  not  return  until  brought  back.  The  plaintiff  proved 
property  in  them,  and  that  after  the  geese  had  left  his  i)remises  the  son 
of  the  defendant  was  seen  pursuing  tliem  with  dogs,  and  was  informed 
that  they  belonged  to  the  plaintiff.  The  jury  found  a  verdict  for  the 
defendant,  on  which  the  justice  gave  judgment. 

Per  Curiam:  The  geese  ought  to  have  been  considered  as  reclaimed 
so  as  to  be  the  subject  of  property.  Tlieir  identity  was  ascertained ;  they 
were  tame  and  gentle,  and  had  lost  the  power  or  disposition  tx)  fly 
away.  They  had  been  frightened  and  chased  by  the  defendant's  son, 
with  the  knowledge  that  they  belonged  to  the  plaintiff',  and  the  case 
affords  no  color  for  the  inference  that  the  geese  had  regained  their 
natural  liberty  as  Avild  fowl,  and  that  the  property  in  them  had  ceased. 
The  defendant  did  not  consider  them  in  that  light,  for  he  held  tliem  in 
consequence  of  the  lien  which  he  supposed  he  had  acquired  by  the 
pledge.  This  claim  was  not  well  founded,  for  he  showed  no  right  in 
the  persons  who  pawned  them  for  the  liquor  so  to  pawn  them,  and  he 
took  them  at  his  peril.  Here  was  clearly  an  invasion  of  private  right. 
If  the  person  who  took  the  geese,  or  who  had  kept  them,  had  been  i)ut 
to  necessary  expense  in  securing  them,  such  expense  ouglit  to  have 
been  refunded;  but  no  such  expense  was  shown  or  pretended,  and  to 
sanction  such  a  pawn  as  this  would  lead  to  abuse  and  fraud. 

A  person  who  takes  up  an  estray  can  not  levy  a  tax  upon  it  but  by 
way  of  amends  of  indemnity.  This  is  the  doctrine  of  the  common  law, 
(1  Eoll.  Abi.,  879,  c.  5;  Noy's  Eep.,  144;  Balk.,  G8G),  and  the  Roman 
lawyers  equally  denied  to  the  finder  of  any  lost  property  a  reward  for 
finding  it  nan  prohe  petat  aliquid,  says  the  Digest  (Dig.  47,  2,  43,  9). 
And,  indeed,  the  civil  law  {ibid.  a.  4)  considered  it  as  a  theft  to  convert 
to  one's  use,  animo  lucrandi,  i)roperty  found,  without  endeavocs  to  find 
the  owners,  or  without  intention  to  restore  it.  But  theft  was  not 
always  considered,  in  that  law,  in  the  very  odious  sense  of  our  com- 
mon law;  for  as  to  the  class  of  thefts  denominated  thefts  not  manifest, 
and  of  which  this  was  one,  that  law  provided  only  a  civil  remedy  of 
double  damages.  A.  Gellius  (Noct.  Alt.  lib.  11,  c.  18),  who  cites  the 
very  ]>as8age  in  the  civil  law  which  declares  such  conduct  theft,  gives 
that  appellation  to  many  acts  which  our  law  does,  and  ought  to  regaid 
as  tresi)as8es  merely;  such,  for  instance,  as  ouster  of  possession  of 
land,    liut,  taking  the  civil  law  in  the  milder  sense,  it  sufficieuciy 


APPENDIX  TO   PART   THIRD — DIVISION   I. 


117 


shovrs  what  was  considered,  in  the  wisdom  of  the  ancients,  as  right 
and  dnty,  in  this  case.  The  practice  of  mankind  is  .apt  to  be  too  lax 
on  this  subject;  and,  when  occasion  offers,  courts  ouglit  to  lay  down 
and  enforce  the  just  and  benevolent  lesson  of  morality  and  law. 

The  verdict,  in  this  case,  being  against  law  and  evidence,  cau  not  be 
supported.    Judgment  reversed. 

[GoEf ««.  Kilts  (15  Wend.,  550).] 

"The  owner  of  hees  which  have  been  reclaimed,  may  bring  an  action 
of  trespass  against  a  person  who  cuts  down  a  tree  into  wliich  the  bees 
have  entered  on  the  soil  of  another,  destroys  the  bees  and  takes  the 
honey. 

"Where  bees  takes  up  their  abode  in  a  tree,  they  belong  to  the  owner 
of  the  soil,  if  they  are  unreclaimed,  but  if  they  have  been  reclaimed,  and 
their  owner  is  able  to  identify  his  property,  they  do  not  belong  to  the 
owner  of  the  soil,  but  to  him  who  had  the  former  possession,  although 
he  can  not  enter  upon  the  lands  of  the  other  to  retake  them  without  sub- 
jecting himself  to  an  action  of  trespass." 

Error  from  the  Madison  common  pleas.  Kilts  sued  GoflF  in  a  justice's 
court  in  trespass  for  taking  and  destroying  a  swarm  of  bees,  and  the 
honey  made  by  them.  The  swarm  left  the  hive  of  the  plaintiff,  flew  off 
and  went  into  a  tree  on  the  lands  of  the  Lenox  Iron  Company.  The 
plaintiff  kept  the  bees  in  sight,  followed  them,  and  marked  the  tree 
into  which  they  entered,  jlwo  months  afterwards  the  tree  was  cut 
down,  the  bees  killed,  and  the  honey  found  in  the  tree  taken  by  the 
defendant  and  others.  The  plaintiff  recovered  judgment,  which  was 
affirmed  by  the  Madison  common  pleas.  The  defendant  sued  out  a 
writ  of  error. 

By  the  court,  Nelson,  J.:  Animals  ferw  nattirw,  when  reclaimed  by 
the  art  and  power  of  man,  are  the  subject  of  a  qualified  property;  if 
they  return  to  their  natural  liberty  and  wildness,  without  the  animus 
revertendi,  it  ceases.  During  the  existence  of  the  qualified  property, 
it  is  under  the  protection  of  the  law  the  same  as  any  other  iiroperty, 
and  every  invasion  of  it  is  redressed  in  the  same  manner.  Bees  are 
ferce  naturas,  but  when  hived  and  reclaimed,  a  i^erson  may  have  a  quali- 
fied property  in  them  by  the  law  of  nature,  as  well  as  the  civil  law. 
Occupation,  that  is  hiving  or  inclosing  them,  gives  property  in  them. 
They  are  now  a  common  species  of  property,  and  an  article  of  trade, 
and  the  wildness  of  their  nature,  by  experience  and  practice,  has  become 
essentially  subjected  to  the  art  and  power  of  man.  An  unreclaimed 
swarm,  like  all  other  wild  animals,  belongs  to  the  first  occupant — in 
other  words,  to  the  person  who  first  hives  them;  but  if  the  swarm  fly 
from  the  hive  of  another,  his  qualified  property  continues  so  long  as  he 
can  keep  them  in  sight,  and  possesses  the  power  to  pursue  them.  Un- 
der these  circumstances,  no  one  else  is  entitled  to  take  them.  (2  Black. 
Comm.,  393;  2  Kent's  Oomm.,  394.) 

The  question  here  is  not  between  the  owner  of  the  soil  upon  which 
the  tree  stood  that  included  the  swarm,  and  the  owner  of  the  bees;  as 
to  him,  the  owner  of  the  bees  would  not  be  able  to  regain  his  property, 
or  the  fruits  of  it,  without  being  guilty  of  trespass;  but  it  by  no  iv  ins 
follows,  from  this  prediiiament,  that  the  right  to  the  enjoyment  ot  the 
property  is  lost;  that  the  bees  therefore  become  again /era?  natura;  and 
belong  to  the  first  occupant.  If  a  domestic  or  tame  animal  of  one  per- 
son shfuild  stray  to  the  inclosure  of  another,  the  owner  could  not  follow 
and  retake  it  without  being  liable  for  a  trespass.    The  absolute  right 


,!i1 


.1  ,1 


!«i 


".I 


118 


ARGUMENT  OF   THE   UNITED    STATES, 


of  property,  notwitlistandlng,  would  still  continue  in  him.  Of  this 
there  can  be  no  doubt.  So  in  respect  to  the  qualitied  i)roperty  in  the 
bees.  If  it  continued  in  the  owner  after  they  hived  themselves  and 
abode  in  the  hollow  tree,  as  this  qualified  interest  is  under  the  same 
protection  of  law  as  if  absolute,  the  like  remedy  existed  in  caoe  of  an 
invasion  of  it.  It  can  not,  I  think,  be  doubted  that  if  the  property  in 
the  swarm  continues  while  within  sight  of  the  owner — in  other  words, 
while  he  can  distinguish  and  identify  it  in  the  air — that  it  equally  be- 
longs to  him  if  it  settles  upon  a  branch  or  in  the  trunk  of  a  tree,  and 
remains  there  under  his  observation  and  charge.  If  a  stranger  has  no 
right  to  take  the  swarm  in  the  former  case,  and  of  which  there  seems 
no  question,  he  ought  not  to  be  permitted  to  take  it  in  the  latter,  when 
it  is  more  confined  and  within  the  control  of  the  occupant. 

It  is  said  the  owner  of  the  soil  is  entitled  to  the  tree  and  all  within  it. 
This  may  be  true,  so  far  as  respects  an  unreclaimed  swarm.  While  it 
remains  Ihere  in  that  condition,  it  may,  like  birds  or  other  game,  (game 
laws  out  of  the  question)  belong  to  the  owner  or  occu-  ant  of  the  forest, 
ratione  soli.  According  to  the  law  of  nature,  where  prior  occupancy 
alone  gave  right,  the  individual  who  first  hived  the  swarm  would  be 
entitled  to  the  property  in  it;  but  since  the  institution  of  civil  society, 
and  the  regulation  of  the  right  of  property  by  its  positive  laws,  the 
forest  as  well  as  the  cultivated  field,  belong  exclusively  to  the  owner, 
who  has  acquired  a  title  to  it  under  those  laws.  The  natural  right  to 
the  enjoyment  of  the  sport  of  hunting  and  fowling,  wherever  animals 
fercB  naturce  could  be  found,  has  given  way,  in  the  progress  of  society, 
to  the  establishment  of  rights  of  property  better  defined  and  of  a  more 
durable  character.  Hence  no  one  has  a  right  to  invade  the  enclosure 
of  another  for  this  purpose.  He  would  be  a  trespasser,  and  as  such 
liable  for  the  game  taken.  An  exception  may  exist  in  the  case  of  nox- 
ious animals,  destructive  in  their  nature.  Mr.  J ustice  Blackstone  says : 
If  a  man  starts  game  in  another's  private  grounds,  and  kills  it  there, 
the  property  belongs  to  him  in  whose  ground  it  is  killed,  because  it  was 
started  there,  the  property  arising  ratione  soli.  (2  Black,  Com.,  419.) 
But  if  animals  fercc  naturce  that  have  been  reclaimed,  and  a  qualified 
property  obtained  in  them,  escape  into  the  private  grounds  of  another 
in  a  way  that  does  not  restore  them  to  their  natural  condition,  a  dif- 
ferent rule  obviously  applies.  They  are  then  not  exposed  to  become 
the  property  of  the  first  occupant.  The  right  of  the  owner  continues, 
and  though  he  can  not  pursue  and  take  them  without  being  liable  for 
a  trespass,  still  this  difidculty  should  not  operate  as  an  abandonment  of 
the  animals  to  their  former  liberty. 

The  rights  of  both  parties  should  be  regarded  and  reconciled,  as  far 
as  is  consistent  with  a  reasonable  protection  of  each.  The  case  of 
Heermance  vs.  Vernay  (0  Johns.  E.,  5),  arid  Blake  vs.  Jerome  (14  id., 
4()6),  are  authorities  for  saying,  if  any  were  wanted,  that  the  inability 
of  the  owner  of  a  personal  chattel  to  retake  it  while  on  the  premises 
of  another,  without  committing  a  trespass,  docs  not  impair  liis  legal 
interest  in  the  property.  It  only  embarrasses  the  use  or  enjoyment  of 
it.  The  owner  of  tiie  soil,  therefore,  acquiring  no  right  to  the  property 
in  the  bees,  the  defendant  below  can  not  protect  himself  by  showing  it 
out  of  the  plaintiff  in  that  way.  It  still  continues  in  him,  and  draws 
after  it  the  possession  sufficient  t.o  maintain  this  action  against  a  third 
person,  who  invades  it  by  virtue  of  no  other  claim  than  that  derived 
from  the  law  of  nature.  This  case  is  distinguishable  from  the  cases  of 
Gillett  vs.  Mason  (7  Johns,  R  ,  1(5),  and  Ferguson  vs.  Miller  (1  Cov^en, 
243).    The  first  presented  a  question  between  the  finder  and  a  person 


IL^ 


APPENDIX   TO   PART   THIRD — DIVISION   I. 


119 


the 


Interested  in  the  soil ;  the  other  between  two  persons,  each  claiming 
as  the  first  finder.  The  plaintiff  in  the  last  case,  thongh  the  first 
finder,  had  not  acquired  a  qualified  property  in  the  swarm,  according 
to  the  law  of  prior  occupancy.  The  defendant  had.  Besides,  the 
swarm  being  unreclaimed  from  their  natural  liberty  while  in  the  tree, 
belonged  to  the  owner  of  the  soil  ratione  soli.  For  these  reasons  I  am 
of  opinion  that  the  judgment  of  the  court  below  should  be  affirmed. 
Judgment  affirmed. 

r.Th«  opinion  of  Baron  Wilile  In  Bladen  v.  Higgs  (12  0.  B.  N.  S.,  512).] 

T  wish  to  add  a  few  words,  as  I  think  the  doctrine  of  animals  ferfe 
■na/urcE  has  in  modern  times  been  sometimes  pushed  too  far.  It  has 
been  urged  in  this  case  that  an  animal  fero!  naturw  could  not  be  the 
subject  of  individual  property.  But  this  is  not  84i;  for  the  common 
law  affirmed  a  right  of  property  in  animals  even  though  they  vcereferw 
nahirw;  if  they  were  restrained  eitlier  by  habit  or  iu<!h)sure  within 
the  lands  of  the  owner.  We  have  the  authority  of  Lord  (Joke's  Re- 
ports for  this  right  in  respect  of  wild  animals,  such  fis  hawks,  deer,  and 
game,  if  reclaimed,  or  swans  or  fish,  if  kept  in  a  private  moat  or  p<md, 
or  doves  in  a  dove  cote.  But  the  right  of  projjcrty  is  not  absolute; 
for,  if  such  deer,  ganic,  etc.,  attain  their  wild  condition  again,  the 
property  in  them  is  said  to  be  lost. 

The  principle  of  the  common  law  seems,  therefore,  to  be  a  very  rea- 
sonable one,  for  in  cases  where  either  their  oAvn  indui'ed  habits  or  the 
confinement  imposed  by  man  have  brought  about  in  the  existence  of 
wild  animals  tlie  character  of  fixed  abode  in  a  particular  locality,  the 
law  does  not  refuse  to  recognize  in  the  owner  of  the  land  which  sus- 
tained them  a  property  coextensive  with  that  state  of  things.  When 
these  principles  were  applied  to  a  country  of  few  inch)sures,  as  in  old 
times,  the  (;ases  of  property  in  game  would  be  few ;  but  the  inclosures 
and  habits  of  modern  f.imes  have  worked  a  great  change  in  the  char- 
acter of  game  in  resi)e<it  to  its  wildness  and  wandering  nature;  and 
there  is  a  vast  quantity  of  8.;me  in  this  country  which  never  stirs  from 
the  inclosed  property  of  the  proprietor  by  whose  care  it  is  raised  and 
on  whose  land  it  is  maintained. 

It  is,  I  think,  now  too  late  for  the  courts  of  law  to  meet  this  change 
of  circumstances  by  declaring  a  property  in  live  game;  but  if  the  leg- 
islature should  interfere,  as  was  suggested  in  argument,  by  giving  to 
the  owner  of  lands  a  property  in  game,  either  absolute  or  qualified,  so 
long  as  it  remained  on  his  land,  it  would  only  be  acting  in  the  spirit 
and  policy  of  the  common  law. 

Mellor,  J.,  concurred.    Judgment  affirmed. 

[Morgan  nnd  nnother,  Executors  of  Jolin,  Earl  of  Abergavenny,  deceased,  v.  William, 
Earl  of  Abergavenny  (8  C.  B.,  768).] 

This  was  an  action  of  trover.  •  •  •  The  defendant  pleaded,  first, 
not  guilty,  except  as  to  the  said  causes  of  action  as  to  twelve  bucks, 
one  stag,  eight  does,  and  four  fawns,  parcel  of  the  said  bucks,  stags, 
does,  and  fiivvns,  respectively,  in  the  declaration  mentioned;  secondly, 
that,  except  as  aforesaid,  the  said  John,  Earl  of  Abergavenny,  in  his 
lifetime  was  not  possessed,  neither  were  the  idaintiffs,  as  executors  as 
aforesaid,  after  the  death  of  the  said  John,  Earl  of  Abergavenny,  pos- 
sessed, of  the  said  deer  or  other  animals  in  the  declaration  mentioned, 
or  any  of  them,  as  of  his  or  their  own  proi)erty,  respectively;  thirdly, 
that,  except  as  aforesaid,  the  said  dc(!r  and  other  animals  in  the  declara- 
tion mentioned  were  not,  nor  was  any  of  them,  captured  and  reclaimed 


120 


ARGUMENT   OF   THE   UNITED   STATES. 


from  their  natural  and  wild  state,  or  tamed  or  kept  confined  or  inclosed; 
foui'tlily,  payment  of  £85  into  court  in  respect  of  the  excepted  bucks, 
stags,  does,  and  fawns. 

The  plaintiffs  joined  issue  on  the  first  three  pleas  and  took  the  £85 
out  of  court  in  satisfaction  pro  tanto. 

The  cause  was  tried  before  Coltman,  J.  and  a  special  jury  at  the  sit- 
tings at  Westminster,  after  Hilary  term,  1847. 

The  action  Avas  brought  tx)  recover  the  value  of  tiie  deer  which  were 
in  the  park  appertaining  to  Eridge  Castle,  in  the  County  of  Sussex, 
the  princii)al  country  residence  of  the  Earls  of  Abergavenny,  at  the 
time  of  the  <lecease  of  John,  the  late  earl,  on  the  12th  of  April,  1845. 

The  plaftitiff's  were  Eichard  Morgan  and  Azaiiah  Ellwood,  the  exec- 
utors of  the  late  earl,  the  defendant  was  his  brother,  who,  the  late  earl 
having  died  a  bachelor,  succeeded  to  the  title  and  to  the  family  en- 
tailed estates. 

At  the  time  of  the  late  earl's  death,  the  deer  in  Eridge  Park  con- 
sisted ot  five  hundred  and  forty  head  of  fsUlow  deer,  and  one  hundred 
head  of  red  deer  in  what  was  called  the  Deer  Park,  twelve  bucks  in  a 
place  called  the  Ifew  Park,  and  six  stags  and  two  bucks  which  were 
stalled  for  fatting. 

Eridge  Park  was  an  ancdent  park,  forming  part  of  the  ancient  manor 
of  Kotherfleld — called  in  Domesday  Book  Keredfelle — which,  it  seems, 
was  royal  demesne  of  the  fee  of  Odo,  Bishop  of  Baieux,  brother  of 
William  the  Conqueror,  and  therefore  held  by  the  Saxon  Earl  Godwin. 
In  Domesday  Book  it  is  thus  described: 

"The  land  consists  of  twenty-six  camcates  in  demesne,  four  cara- 
catesand  fourteen  villeins  with  six  bordarers,  having  fourteen  ploughs. 
Tiiere  are  four  servi  and  wood  suflHcient  to  feed  four  score  hogs.  There 
is  a  park.  In  the  time  of  King  Edward  the  Confessor,  it  was  worth 
£16;  and  afterwards  £14;  now  £12;  and,  nevertheless,  renders  £30." 

The  substance  of  the  evidence  given  on  the  part  of  the  plaintiffs  was 
as  follows : 

In  modern  times,  Eridge  Old  Park  has  consisted  of  about  900  acres, 
a  great  portion  of  which  is  of  a  rough,  wild  description,  containing  a 
considerable  quantity  of  fern,  brake,  and  gorse.  The  new  p?  •  k  adjoin- 
ing consists  of  about  200  acres.  Some  additions  were  about  forty  years 
ago  made  to  the  Old  Park  by  the  removal  of  portions  of  the  ancient 
fences,  and  erecting  paling  round  the  land  so  added.  The  deer  usually 
had  the  range  of  the  Old  Park,  where  they  were  attended  by  keepers 
and  fed  in  the  winter  with  hay,  beans,  and  other  food.  The  does  were 
watched  in  the  falling  season,  and  the  fawns  marked  as  they  were 
dropped,  in  order  to  ascertain  their  age  and  to  preserve  the  stock.  At 
times,  certain  of  the  deer  were  selected  from  the  herd  and  caught,  with 
the  assistance  of  lurches  muzzled,  or  with  their  teeth  drawn,  and  turned 
into  an  inclosure  in  the  new  park,  or  into  pens  or  stalls  for  the  purjiose 
of  fattening  them  for  consumption,  or  for  sale  to  venison  dealers.  The 
ordinary  mode  of  killing  them  was  by  shooting.  There  was  a  slaughter- 
house in  the  park  for  preparing  and  dressing  the  carcasses.  Some  years 
since  a  great  number  of  deer  were  brought  to  Eridge  from  Penshurst 
and  other  places.  Deer  sometimes,  though  rarely,  escaped  from  the 
park  by  leaping  over  the  fence.  Some  of  them  were  described  as  being 
very  tame,  coming  close  to  the  keepers  when  called  at  feeding  times. 
Witnesses  were  also  called  to  prove  that  of  late  years  deer  have  been 
commonly  bought  and  sold  for  profit  like  sheep  or  other  animals  kept 
for  the  food  of  man.    •    *    • 

On  the  part  of  the  defendant  the  conversion  was  admitted;  but  it 


APPENDIX   TO   PART   THIRD DIVISION   I. 


121 


was  insisted  tlmt  Eritlge  Park  was  an  ancient  legal  park,  and  that  the 
deer  therein,  by  the  law  of  the  land,  were  not  personal  property,  but 
formed  part  of  the  inheritance.    *    •    • 

For  the  plaintiffs  it  was  submitted  that,  although  Eridge  Park  might 
originally  have  been  a  park  in  the  strict  sense  of  the  term,  having  all 
the  incidents  of  a  legal  park — vert,  venison,  and  inclosnre — it  had 
ceased  to  bear  that  character,  by  reason  of  the  manner  in  which  it  had 
in  modem  times  been  dealt  with,  it  being  essential  that  the  boundaries 
of  an  ancient  park  should  be  strictly  preserved,  and  that,  by  the  mode 
in  which  the  deer  in  question  had  been  treated,  they  had  ceased  to  be 
fercB  natural,  and  had  become  mere  personal  property,  like  sheep  or  any 
other  domestic  animals. 

The  learned  judge,  in  his  summing  up,  told  the  jury  that  the  main 
question  for  them  to  consider  was,  whether  the  deer  in  dispute  were  to 
be  looked  upon  as  wild,  or  as  tame  and  reclaimed;  and  that  it  had 
been  laid  down  by  the  best  authorities  upon  the  subject  that  deer  in  a 
park,  conies  in  a  warren,  and  doves  in  a  dovecot,  generally  speaking, 
go  with  the  inheritance  to  the  heir,  or,  in  a  case  like  the  present,  where 
the  estate  does  not  go  exactly  in  heirship,  but  under  the  limitations  of 
an  act  of  parliament,  to  the  person  next  entitled  under  the  parliamen- 
tary settlement;  but  that  the  rule  was  subject  to  this  exception — that, 
if  the  animals  are  no  longer  in  their  wild  state,  but  are  so  reduced  as 
to  be  considered  tame  and  reclaimed,  in  that  case  they  go  to  the  exec- 
utors, and  not  to  the  heir.  lie  then  proceeded,  in  substance,  as  fol- 
lows: A  large  body  of  evidence  has  been  laid  before  you,  for  the  pur- 
pose of  satisfying  you  that  Eridge  Park  was  an  ancient  park,  having 
all  the  incidents  and  privileges  of  an  ancient  park,  to  which  rights 
formerly  appertained  which  are  now  comparatively  valueless.  But  the 
question  will  not  turn  upon  whether  Eridge  was  or  was  not  an  ancient 
park;  though,  at  the  same  time,  it  may  be  desirable  if  you  are  able  to 
form  an  opinion  upon  it,  that  you  should  state  it.  Undoubtedly,  one 
who  has  an  ancient  park,  having  the  rights  and  incidents  of  a  legal 
park,  ought  to  preserve  the  boundaries  within  which  he  (ilaims  to  exer- 
cise tliose  rights.;  and  probably  there  can  be  no  doubt  tliat,  if  the 
boundaries  are  so  effaced  that  they  can  not  be  distinctly  ascertained, 
his  franchise,  as  against  the  Grown,  would  be  lost. 

But  that  is  a  matter  which  does  not,  as  it  seems  to  me,  very  much 
concern  the  question  now  before  us,  because,  though  some  rights  might 
be  forfeited  by  the  destruction  of  the  ancient  boundaries,  still  the  nature 
of  the  animals  would  remain  unchanged.  That  deer,  when  caught  and 
inclosed  in  a  pen,  would  pass  to  the  executors  there  can  be  no  doubt, 
and  probably  if  animals  of  this  sort  were  inclosed  in  a  small  fteld,  well 
fenced  round  and  well  kept,  it  could  hardly  be  said  that  they  were  not 
so  far  reduced  into  immediate  possession  as  to  become  personal  property. 
It  is  quite  admitted,  upon  the  evidence  on  the  one  side  and  ontheother, 
that  there  have  been,  from  time  to  time,  additions  made  to  what  formerly 
constituted  Bridge  Park,  though  there  is  some  difference  as  to  the 
quantity.  And  observing  upon  the  documentary  evidence  put  in  on 
the  part  of  the  defendant,  the  learned  judge  said,  with  reference  to  the 
extiact  from  Domesday  Book  and  to  the  inquisition  taken  in  the  reign 
of  Edward  the  Third  upon  the  death  of  Hugh  de  Spencer,  that  at  that 
period,  when  the  forest  laws  were  in  full  vigor,  whenever  a  "park" 
was  mentioned  it  must  be  understood  to  mean  a  legal  park.  And  he 
concluded  by  asking  the  opinion  of  the  jury  upon  two  questions  which 
he  gave  them  in  writing :  first,  whether  Eridge  Park  was  an  ancient 
park,  with  all  the  incidents  of  a  legal  park;  secondly,  whether  the 


B^s 


n   -'I 

I 


15 


»i: 


122 


ARGUMENT   OF   THE   UNITED   STATES. 


boundaries  could  be  ascertained  by  distinct  marks,  tollin{?  them  tliat 
the  principal  question  was  whether  they  found  for  the  plaintiffs  or  for 
the  defendant,  the  others  being  only  incidental. 

The  jury  retired,  and  after  a  protracted  absence  returned  into  court, 
thejudfge  having  left;  when,  upon  the  associate  asking  them  whether 
they  found  for  the  plaintiffs  or  the  defendant,  the  foremaft  answered: 

"  We  find,  first,  that  it  was  originally  a  legal  park,  but  that  its 
boundaries  have  been  altered  and  enlarged;  secondly,  we  find  that  the 
deer  have  been  reclaimed  from  their  natural  wild  state.  What  the 
effect  of  that  opinion  is  we  are  not  lawyers  enough  to  say." 

The  associate  declining  to  receive  their  verdict  ia  Jiat  form,  the  jury 
again  retired,  and  after  a  short  absence  returned  into  court,  the  fore- 
man (addressing  the  associate)  saying:  "You  may  take  it  in  the  first 
instance  as  a  verdict  for  the  plaintiffs."  The  associate  then  asked, 
♦'Do  you  find  that  there  was  an  ancient  park,  with  the  incidents  of  a 
legal  park?"  To  which  the  foreman  answered,  "We  find  that  it  was 
originally  a  legal  park,  but  that  its  boundaries  have  been  altered  and 
enlarged."  Associate:  "Do  you  find  that  there  was  an  ancient  park, 
with  the  incidents  of  a  legal  park!"  Foreman:  "Yes."  Associate: 
"  Do  you  find  that  there  were  distinct  marks  by  which  the  boundaries 
could  be  ascertained?  "    Foreman :  "  Yes,  there  were." 

The  verdict  was  accordingly  entered  for  the  plaintiffs. 

Talfourd,  Sergeant,  in  the  following  Easter  terra,  obtained  a  rule  nisi 
for  a  new  trial,  on  the  grounds,  first,  that  there  had  been  no  complete 
finding  by  the  jury,  they  not  having  distinctly  answered  the  real  ques- 
tion which  was  submitted  to  them,  viz,  whether  the  deer  were  wild  or 
reclaimed ;  secondly,  that  the  learned  judge  misdirected  the  jury,  in 
presenting  the  case  to  them  as  if  the  existence  or  nonexistence  of 
Bridge  Park,  with  all  the  legal  incidents  of  a  park,  was  a  mere  collateral 
question,  whereas  it  was  of  the  very  essence  of  the  inquiry  (Co.  Litt. 
8  a.;  The  case  of  Swans;  Davies  v.  Powell);  thirdly,  that  there  was  no 
sufficient  evidence  to  warrant  the  finding. 

Humphrey,  Channell,  Sergt.,  and  Bovill,  in  Easter  term,  1848,  showed 
cause  in  support  of  the  verdict,  and  Talfourd  and  Byles,  Terfts  and 
Willes  supported  the  rule  to  show  cause. 

Maule,  J.,  now  delivered  the  judgment  of  the  court: 

This  case  was  argued  in  Easter  term,  1848,  before  Lord  Chief  Justice 
Wilde  and  my  brothers  Coltman  and  Cresswell  and  myself.  In  the 
absence  of  the  Lord  Chief  Justice,  I  now  proceed  to  pronounce  the 
judgment,  which  has  been  prepared  by  him,  and  in  substance  assented 
to  by  us. 

This  was  an  action  of  trover,  brought  to  recover  damages  for  the  con- 
version of  a  number  of  deer.  The  declaration  contained  two  counts. 
The  first  count  stated  that  the  testator,  in  his  lifetime,  was  possessed 
of  a  certain  number  of  bucks,  does,  and  other  descriptions  of  deer,  being 
captured  and  reclaimed  from  their  natural  wild  state  and  confined  in 
the  close  of  the  testator,  and  that  the  plaintiff'a,  after  his  death,  were 
IKJSsessed  as  executtirs,  and  that  the  defendants  afterwards  converted 
the  deer,  etc.  The  second  count  stated  that  the  plaintiffs,  as  executors, 
were  possessed  of  the  like  quantity  of  deer,  which  the  defendant  had 
converted,  to  the  damage  of  the  plaintiffs. 

The  defendant,  except  as  to  a  certain  number  of  bucks,  does,  and 
fawns,  pleaded  not  guilty  to  the  whole  declaration;  and,  secondly, 
that  the  testator  was  not  possessed,  nor  were  the  plaintiffs,  as  his  ex- 
ecutors, possessed,  of  the  deer  as  alleged;  thirdly,  that  except  as  to  a 
certain  number  of  bucks,  does,  and  fawns,  the  deer  alleged  in  the  dec- 


APPENDIX    TO   PART   THIRD — DIVISION   I. 


123 


Ifinition  were  not  captured,  reclaimed,  and  tamed,  or  kept  confined  in 
inclosed  grounds,  as  alleged;  lastly,  as  to  tlie  excepted  bucks,  does,  and 
fawns,  the  defendant  paid  the  sum  of  X85  into  court. 

Issue  was  joined  on  these  pleas. 

The  cause  was  tried  before  the  late  Mr.  Justice  Coltman,  at  the  ait- 
tings  in  Middlesex,  after  Hilary  term,  1847,  when  the  jury  found  a 
verdict  for  the  plaintiffs  upon  the  issues — testator  possessed — plaintiffs 
possessed — and  that  the  deer  were  tame  and  reclaimed. 

A  rule  nisi  was  afterwards  obtained  by  the  defendant  in  the  follow- 
ing Easter  term  to  show  cause  why  thei-e  should  not  be  a  new  trial 
upon  the  ground  of  misdirection,  that  there  had  been  no  sufficient  ver- 
dict found  by  the  jury,  and  that,  if  a  sufilcient  verdict  had  been  found, 
it  was  contrary  to  tlie  evidence. 

Several  questions  arose  upon  the  trial, — first,  whether  the  land 
called  Bridge  Park,  in  the  county  of  Sussex,  was  an  ancient  legal  park ; 
secondly,  whether  it  continued  to  be  a  legal  park,  or  whether  it  had 
become  disparked  by  the  addition  of  other  lands  to  the  original  park, 
and  by  the  removal,  decay,  or  destruction  of  the  fences,  so  as  to  destroy 
the  evidence  of  the  boundaries  of  such  ancient  park;  and  whether  the 
deer  kept  in  such  park  had  been  tamed  and  reclaimed. 

In  support  of  the  defendant's  case  various  ancient  documents  were 
given  in  evidence  to  establish  that  the  place  in  question  was  an  ancient 
legal  park,  and  that  from  a  very  early  i)eriod  down  to  the  time  of  the 
death  of  the  testator  there  had  always  been  a  considerable  herd  of  deer 
maintained  in  the  park.  And  it  was  also  proved  that  the  place  in 
question,  consisting  of  upwards  of  700  acres  of  land,  was,  in  many  parts, 
of  a  very  wild  and  rough  description.  It  also  appearetl  by  the  evidence 
that  certain  lands  had  been  added  to  the  original  park;  and  there  was 
some  contrariety  of  evidence  in  regard  to  the  state  of  the  fences. 

It  was  also  proved  that  a  considerable  quantity  of  deer  had  the 
range  of  the  park;  and  that  som'e  were  tame,  as  it  was  called,  and 
others  wild.  What  in  particul.ar  the  witnesses  meant  by  the  distinc- 
tions of  taran  and  wild  was  not  explained;  but  it  rather  seemed  that 
their  meaning  was  that  some  wore  less  shy  and  timid  than  others.  It 
appeared  that  the  deer  very  rarely  escaped  out  of  the  boundaries;  that 
they  were  attended  by  keepers,  and  were  fed  in  the  winter  with  hay, 
beans,  and  other  food;  that  a  few  years  back  a  quantity  of  deer  had 
been  brought  from  some  other  place  and  turned  into  Bridge  Park ; 
that  the  does  wore  watched,  and  the  fawns,  as  they  dropped,  were 
constantly  marked,  so  that  their  age  at  a  future  time  might  be  ascer- 
tained; that,  at  certain  times,  a  number  of  deer  were  selected  from 
the  herd,  caught  with  the  assistance  of  dogs,  and  were  put  into  cer- 
tain parts  of  the  park,  which  were  then  inclosed  from  the  rest,  of  suffi- 
cient extent  to  depasture  and  give  exercise  to  the  selected  deer,  which 
were  fattened  and  killed,  either  for  consumption,  or  for  sale  to  venison 
dealers;  that  the  deer  were  usually  killed  by  being  shot;  and  that  there 
was  a  regular  establishment  of  slaughterhouses  for  preparing  and 
dressing  them  for  uhc. 

Such  being  the  general  effect  of  the  evidence,  the  learned  judge 
stated  to  the  jury,  that,  by  the  general  law,  deer  in  a  park  went  to  the 
heir-at-law  of  the  owner  of  the  park;  but  that  deer  which  were  tame 
and  reclaimed  became  personal  property,  and  went  by  law  to  the  personal 
representatives  of  the  owner  of  them,  and  not  to  the  heir  of  the  owner 
of  tlie  park  in  which  they  were  kept.  And  the  learned  judge  lei't  it  to 
the  jury,  whether  the  place  in  question  was  proved  by  the  evidence  to 
have  been  an  ancient  park,  with  the  I  jgal  rights  of  a  park,  and  told 


'      "'ft 


I  u 


124 


ARGUMENT   OF  THE   UNITED   STATES. 


them  that,  if  it  hnd  been  an  ancient  park,  and  the  boundaries  conid 
not  !iow  be  ascertuined,  that  the  franchise  niiglit  be  forfeited  in  refer- 
ence to  the  crown,  but  tliat  tltat  would  not  affect  the  question  between  the 
parties  relative  to  the  deer,  that  question  being  whether  the  deer  were 
tamed  and  reclaimed;  which  must  be  determined  with  reference  to  the 
state  and  condition  of  the  animals,  the  nature  of  the  place  where  they 
were  kept  and  the  mode  in  which  they  had  been  treated:  and  the 
learned  .judge  stated  in  writing  the  questions  to  be  answered  by  the 
jury,  which  were,  tirst,  whether  they  found  for  the  plaintiff's,  the  exec- 
utors, or  for  the  defendant,  Lord  Abergavenny;  secondly,  whether  they 
found  the  place  to  be  an  ancient  ])ark,  with  the  incidents  of  a  legal 
park;  thirdly,  whether  the  boundaries  could  be  ascertained  by  distinct 
marks. 

The  jury  answered,  that  they  found  the  plaee  to  be  an  ancient  park, 
with  all  the  incidents  of  a  legal  park;  secondly,  that  the  boundaries  of 
the  ancient  park  could  be  ascertained.  And  the  jury  expressed  a  wish 
to  abstain  from  finding  for  either  plaintiff's  or  defendant;  but,  upon 
being  required  to  do  so,  they  found  a  verdict  for  the  plaintiff's,  and 
stated  that  the  animals  had  been  originally  wild,  but  had  been  re- 
claimed. 

The  rule  came  on  for  argument  in  Easter  term,  1848;  and  it  appeared, 
upon  the  discussion,  that  the  objection  that  no  sufficient  verdict  had 
been  found  by  the  jury,  had  been  urged  upon  a  misapprehension  of  what 
the  jury  had  said.  It  was  supposed  that  the  jury  had  not  found;  in 
terms,  for  either  plaintiff's  or  defendant,  but  merely  had  answered  the 
questions  put  to  them:  but  it  appeared,  upon  inquiry,  that  the  jury 
had  been  required  to  lind  a  verdict  for  the  plaintiff's  or  for  the  defend- 
ant, in  addition  to  answering  the  questions;  and  that  they  accordingly 
returned  a  verdict  for  the  plaintiff's. 

The  second  objection  was  that  the  judfe  had  misdirected  the  jury; 
and  it  has  been  contended,  in  support  ofth  ct  objection,  that  the  judge 
must  be  held  to  have  misdirected  the  jury  in  having  omitted  to  im- 
press sufHcientlyupon  them  the  import.'aLt  <Jof  the  fact  of  the  deer  being 
kept  in  an  ancient  legal  park. 

But  the  judge  did  distinctly  direct  the  attention  of  the  jury  to  the 
fact  of  the  deer  being  in  a  legal  park,  if  such  should  be  their  opinion 
of  the  place,  as  an  important  ingredient  in  the  consideration  of  the 
question  Avhether  the  deer  were  reclaimed  or  not  when  he  directed  them 
that  the  question  whether  the  deer  had  been  recilaimed  must  be  de- 
termined by  a  consideration,  among  the  other  matters  pointed  out,  of 
the  nature  and  dimensions  of  the  park  in  which  they  were  confined; 
and  we  do  not  perceive  any  objectionable  omission  in  the  judge's  direc- 
tion in  this  respect,  unless  the  jury  ought  to  have  been  directed  that 
such  fact  was  conclusive  to  negative  the  reclamation  of  the  deer. 

It  has  not  been,  on  the  part  of  the  defendant,  contended,  in  terms, 
that  deer  kept  in  a  legal  park  can  in  no  case  be  deemed  to  have  been 
tamed  or  reclaimed,  although  the  argument  seemed  to  bear  that  aspect; 
but  the  many  cases  to  be  found  in  the  books  in  which  the  question  has 
been  agitated,  in  Avhom  the  property  was  of  deer  in  a  park,  seem  qirite 
inconsistent  with  such  a  position ;  because  in  all  such  cases  the  argu- 
ments proceeded  upon  the  distinct  fact  that  the  deer  were  in  a  park, 
that  is,  a  legal  park;  and  the  question  was  whether  deer  continued  to 
be  wild  animals,  in  which  no  property  could  be  acquired,  and  which, 
therefore,  like  other  game  and  wild  animals,  being  upon  the  land, 
passed  with  the  estate,  or  whether,  by  reason  of  their  being  tamed  and 
reclaimed,  a  property  could  be  acquired  in  the  deer  distinct  fiom  the 


APPENDIX   TO   PART   THIRD — DIVISION   I. 


125 


estate,  although  remaining  in  tlie  park,  and  which  would  puss  in  like 
manner  as  other  personal  property. 

The  general  position,  tlierefore,  to  be  found  in  all  the  books,  tliat  deer 
in  a  park  will  pass  to  the  heir  unless  tamed  and  reclaimed,  in  wliicii 
case  they  would  pass  to  the  executor,  seems  to  bo  inconsistent  witli  tlie 
])osition  that  deer  can  not,  in  any  case,  bii  considered  as  tamed  and 
reclaimed  whilst  they  continue  in  a  legal  i»ark.  Many  authorities  are 
cited  upon  that  subject,  the  names  of  wliich  it  is  not  necessary  to  ad- 
vert to. 

Tlie  observations  made  in  siipport  of  the  rule,  on  the  part  of  the 
defendant,  were  ratlier  addressed  to  a  complaint  that  the  learned  jiulge 
did  not  give  so  much  Aveight  to  the  fact  of  this  being  a  legal  ])ark  as 
tliey  thought  belonged  to  it,  than  to  any  exception  to  what  tlie  judge 
really  said  ui>on  the  subject.  There  can  be  no  doubt  that  the  learned 
counsel  on  the  part  of  the  defendant  did  not  omit  to  impress  uj>()n  the 
jury  his  view  of  the  importance  of  the  fact  of  the  deer  being  found  in  an 
ancient  and  legal  park;  and  nothing  is  stated  to  have  fallen  from  the 
judge  calculated  to  withdraw  the  attention  of  the  jury  from  the  obser- 
vatious  of  the  counsel  made  in  that  respect,  or  to  diminish  the  force 
which  justly  attaches  to  any  of  them. 

It  remains  to  be  considered  whether  the  auguments  In  support  of  the 
rule  have  shown  that  the  verdict  upon  the  issue,  whether  the  deer  were 
tame  and  reclaimed,  was  warranted  by  the  evidence.  In  showing 
cause,  on  the  part  of  the  plaintiif,  against  the  rule,  it  was  contended 
that  the  conclusion  of  the  jury,  that  Bridge  Park  continued  t/>  possess 
all  the  incidents  of  a  legal  park,  was  not  warranted  by  the  evidence; 
because  it  was  ssiid  that  the  franchise  had  been  forfeited  by  the  addi- 
tion of  other  lands  to  the  ancient  park,  and  the  destruction  of  the 
means  of  acertaining  the  ancient  boundaries;  and  numerous  authori- 
ties were  referred  to,  relating  to  the  requisites  for  constituting  an  exist- 
ing legal  park,  and  of  the  causes  of  the  forfeiture  of  the  franchise.  But 
the  opinion  which  the  court  has  formed  upon  the  other  parts  of  the 
case,  renders  it  unnecessary  to  enter  into  the  consideration  of  that 
question,  or  into  an  examination  of  the  authorities  referred  to. 

That  it  was  proper  to  leave  the  question  to  the  jury  in  the  terms  in 
which  the  issue  is  expressly  joined  can  not  be  disputed,  and  the  direc- 
tion that  that  question  must  be  determined  by  referring  to  the  i)lace  in 
which  the  deer  were  kept,  to  the  nature  and  habits  of  the  animals,  -vnd 
to  the  mode  in  which  they  were  treated,  appears  t(»  the  court  to  be  a 
correct  direction ;  and  it  seems  difficult  to  ascertain  by  Avhat  other 
means  the  question  should.be  determined,  whether  the  evidence  in 
tliis  case  was  such  as  to  warrant  a  conclusion  that  the  deer  were  tamed 
and  reclaimed. 

The  court  is,  therefore,  of  opinion  that  the  rule  can  not  be  supported 
on  the  ground  of  misdirection. 

It  is  not  contended  that  there  was  no  evidence  fit  to  be  submitted  to 
the  jury,  and  that,  therefore,  the  plaintiff  ought  to  have  been  non- 
suited} but  it  is  said  that  the  weight  of  evidence  was  against  the  ver- 
dict. 

In  considering  whether  the  evidence  warranted  the  verdict  upon  the 
issue,  whether  the  deer  were  tamed  and  reclaimed,  the  observations 
made  by  Lord  Chief  Justice  Willes  in  the  case  of  Davies  v.  Powell,  are 
deserving  of  attention.  The  difference  in  regard  to  the  mode  and  ob- 
ject of  keeping  deer  in  modern  times  from  that  which  anciently  ])re- 
vailed,  as  pointed  out  by  Lord  Chief  Justice  Willes,  can  not  bo  over- 
looked.   It  is  truly  stated  that  ornament  and  profit  are  the  sole  ob- 


mm 


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ni'.!! 


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r  if. 


,  .i    i 


126 


ARGUMENT  OF  THE  UNITED  STATES. 


jecte  for  which  deer  are  now  ordinarily  kept,  whether  in  ancient  legal 
parks  or  in  modern  inclosures  so  called;  the  instances  being  very  rare 
in  which  deer  in  such  places  are  kept  and  used  for  sport;  indeed,  their 
whole  management  dittering  very  little,  if  at  all,  from  tha ,  of  sheep,  or 
of  any  other  animals  kept  for  profit.  And,  in  this  case,  the  evidence 
before  adverted  to  was  that  the  deer  were  regularly  fed  in  the  winter; 
.the  does  with  young  were  watched ;  the  fawns  taken  as  soon  as  dropped, 
and  marked;  selections  from  the  herd  made  from  time  tt>  time,  fattened 
in  places  prepared  for  them,  and  afterwards  sold  or  consumed,  with  no 
difference  of  circumstance  than  what  attached,  as  before  stated,  to 
animals  kept  for  profit  and  food. 

As  to  some  being  wild,  and  some  tame,  as  it  is  said,  individual  ani- 
mals, no  doubt,  differed,  as  individuals  in  almost  every  race  of  animals 
are  found,  under  any  circumstances  to  differ,  in  the  degree  of  tameness 
that  belongs  to  them.  Of  deer  kept  in  stalls,  some  would  be  found 
tame  and  gentle,  and  others  quite  irreclaimable,  in  the  sense  of  temper 
and  quietness. 

Upon  a  question  whether  deer  are  tamed  and  reclaimed,  each  case 
must  depend  upon  the  particular  facts  of  it;  and  in  this  case,  the  court 
think  that  the  facts  were  such  as  were  proper  to  be  submitted  to  the 
jury;  and,  as  it  was  a  question  of  fact  for  the  jury,  the  court  can  not 
])erceive  any  sufficient  grounds  to  warrant  it  in  saying  that  the  jury 
have  come  to  a  wrong  conclusion  upon  the  evidence,  and  do  not  feel 
authorized  to  disturb  the  verdict;  and  the  rule  for  a  new  trial  must, 
therefore,  lie  discharged.    Rule  discharged. 

[John  Da  vies  v.  Thomas  Powell  and  six  others.    Willes's  Reports,  1737-1758.] 

The  following  opinion  of  the  court  was  thus  given  by  Willes,  Lord 
Chief  Justice. 

Trespass  for  breaking  and  entering  the  close  of  the  plaintiff  called 
Cavershara  Park,  containing  000  acres  of  land,  in  the  parish  of  Caver- 
sham  iii  the  county  of  Oxford,  for  treading  down  the  grass,  and  for 
chasing  taking  and  carrying  away  diversas  /eras,  videlicet,  100  bucks 
100  does  and  00  fawns  of  the  value  of  £000  of  the  said  plaintiff  inclu- 
%aa  et  eoarctatas  in  the  said  close  of  the  said  plaintiff".    Damage  £700. 

The  defendants  all  join  in  the  sar.ic  plea;  and  as  to  the  force  and 
arms,  etc.  they  plead  not  guilty,  but  as  to  the  residue  of  the  trespass 
theyjustify  as  servants  of  Charles  Lord  Cadogan,  and  set  forth  that  the 
place  where,  etc.,  at  the  time  when,  etc.,  was,  and  is  a  park  inclosed  and 
fenced  with  pales  and  rails,  called  and  known  by  the  name  of  Caver- 
sham  Park,  etc. ;  and  that  the  said  Lord  Cadogan  was  seized  tliereot 
and  also  of  a  messuage,  etc.,  in  his  demesne  as  of  fee,  and  being  so  seized 
on  the  3d  of  August,  1730,  by  indenture  demised  the  same  to  the  plain- 
tiff by  the  name  {inter  alia)  of  all  the  said  park  called  Cavershani  Park 
from  Lady -day  th»^n  last  past  for  the  term  of  7  years,  under  the 
rent  of  £124  28.  'iiie  deer  are  not  particularly  demised,  but  there 
is  a  covenant  that  the  plai'ititt",  his  executors,  and  administrators 
should  from  time  to  time  during  the  term  keep  the  full  number  of 
100  living  deer  in  and  upon  the  said  demised  premises,  or  in  or  upon 
some  parts  thereof.  And  Lord  Cadogan  covenants  to  allow  the 
plaintiff  in  the  winter  yearly  during  the  term  twenty  loads  of  boughs 
and  lops  of  trees  for  browse  for  his  deer  to  feed  on,  ci.lling  them  there,  as 
hedoesinotherpartsof  the  lease,  the  deer  of  tlie  said  John  Davies;  and 
likewise  covenants  that  if  the  j)laintiff  shall  <»i-  tlie  feast  of  St.  Mi'duiel 
next  before  the  expiration  thereof  pay  Lord  (Jadogan  all  the  rent  that 


APPENDIX   TO  PART  THIRD — DIVISION   I. 


127 


Avould  be  due  at  the  expiration  of  the  lease,  then  the  jdaintiif,  his  ex- 
ecutors, etc.,  might  sell  or  dispose  of  auy  or  all  of  the  deer  that  he  or 
they  should  have  in  the  vsaid  park  at  any  time  in  the  last  year  of  the 
said  term,  anything  in  the  said  indenture  to  the  contrary  in  anywise 
notwithstanding.  And  the  defendants  justify  taking  the  said  deer  iis 
a  distress  for  £186  rent  due  at  St.  Thomas-day,  1731,  and  say  that 
they  did  seize,  cliase,  and  drive  away  the  said  deer  in  the  dexilara- 
tion  mentioned  then  and  there  found,  "  being  the  property  of  and  be- 
longing to  the  said  John  Davies,''  in  the  name  of  a  distress  for  the 
said  rent;  and  tlieu  set  forth  that  they  complied  with  the  several 
requisites  directed  by  the  act  concerning  distresses  (and  to  which  tliere 
is  no  objection  taken)  that  the  deer  were  appraised  at  £161  15s.  6d., 
and  that  they  were  afterwards  sold  for  £86  19«.,  being  the  best  price 
they  could  get  for  the  same;  and  that  the  said  sum  was  paid  to  Lord 
Cadogan  toAvards  8atisIa(!tion  of  the  rent  in  arrear;  and  that  in  tak 
ing  such  distress  they  did  as  little  damage  as  they  could. 

To  this  plea  the  plaintiff  demurs  generally,  and  the  defendants  join 
in  demurrer. 

And  the  single  question  that  was  8ub?nitted  to  the  judgment  of  the 
court  is  whether  these  deer  under  tliese  circumstances,  as  they  are  set 
forth  in  the  ideadiugs,  were  distraiuable  or  not.  It  was  insisted  for 
the  plaintiff  that  they  were  not; 

(1)  Because  they  were /<;rfc«a<!<ra;,  and  no  one  can  have  absolute 
property  in  them. 

(2)  Because  they  are  not  chattels,  but  are  to  be  considered  as  here- 
ditaments and  incident  to  the  park, 

(3^  Because,  if  not  hereditaments,  they  were  at  least  part  of  the 
thirig  demised. 

(4)  Their  last  argument  was  drawn  ah  imisitato,  because  there  is  no 
instance  in  which  deer  have  been  adjudged  to  be  distraiuable. 

First.  To  support  the  first  objeition,  and  which  was  principally  re- 
lied on  by  the  counsel  for  the  plai.itift',  they  cited  Finch  176;  Bro.  Abr., 
tit.  "Property,"  pi  20;  Keilway,30b;  Co.  Lit.  47  a;  IKol.  Abr.666;  and 
several  other  old  books,  wherein  it  is  laid  down  as  a  rule  that  deer  are 
not  distraiuable;  and  the  cat^e  of  Mallocke  v.  Eustley,  3  Lev.  227, 
where  it  was  holden  that  trespaas  will  not  lie  for  deer,  unless  it  ap- 
])ear«  that  they  are  tame  and  reclaimed.  TJiey  likewise  cited  3  Inst. 
109, 110,  and  1  Hawk.  P.  C  91  to  prove  that  it  is  not  felony  to  take 
awiiy  deer,  conies,  etc.,  unless  tame  and  reclaimed. 

I  do  admit  that  it  is  generally  laid  down  as  a  rule  in  the  (Jd  books 
that  deer,  conies,  etc.,  are /era;  naturw,  and  that  they  are  not  distrain- 
iiWe:  and  a  man  can  only  have  a  property  in  them  rntione  loci.  And 
tlierefore  in  tie  case  of  swans,  (7  Co.  lo,  16,  17,  18)  and  in  several  other 
books  there  cited  it  is  laid  down  as  a  rule  tluit  where  a  man  brings  an 
action  for  chasing  and  taking  away  deer,  hares,  ral^bits,  etc.,  he  shall  not 
way  8U0S,  because  lie  has  them  only  for  his  game  and  ])l«',asure  ratione 
imvilegii  wliilst  they  are  in  his  park,  warren,  etc.  Put  there  are  writs 
in  the  register  (fol.  i02),  a  book  of  the  greatest  authority,  and  ^^.i-veral 
other  places  in  that  book  whicii  show  that  this  rule  is  vol  always 
adhered  to.  The  writ  in  folio  102  is  ^'^qtiare  vlatisum  ipsius  A.frcget  ct 
intravit,  cfc  cuni(  ulos  nuos  ccpit.^^ 

The  reason  given  for  this  opinion  in  the  books  why  they  are  not 
(listraiiuible  is  tiiat  a  man  can  have  no  valuable  property  in  them.  But 
the  rule  is  plainly  too  general,  for  the  rule  in  Co.  Lit.  is  extended  t<,> 
dogs,  yet  it  is  clear  now  that  a  nnm  may  have  a  valuable  i)roi)erty  in  a 
dog.    Trover  has  been  several  times  brought  for  a  dog,  and  great 


||! 


i 


I 


h' 


128 


ARGUMENT  OF   THE   UNITED   STATES. 


damages  have  been  recovered.  Besides  the  nature  of  thinj?s  is  now 
very  much  altered,  and  the  reason  which  is  given  for  the  rule  fails. 
Deer  were  formerly  kept  only  in  forests  or  chases,  or  such  parks  as 
were  parks  *»''ther  by  grant  or  prescription,  and  were  considered  rather 
as  thinfTP  of  pleasure  than  of  profit;  but  now  they  are  frequently  kept 
in  inclosed  grounds  which  are  not  properly  parks,  and  are  kept  princi- 
pally for  the  sake  of  profit,  and  theref  re  must  be  considered  as  other 
cattle. 

And  that  this  is  the  case  of  the  deer  which  are  distrained  in  the  pres- 
ent case  is  admitted  in  the  pleadings.  The  plaintiff  by  bringing  an 
action  of  trespass  for  them  in  some  measure  admits  himself  to  have  a 
l)roperty  in  them;  and  they  are  laid  to  be  inclusas  et  coarctatas  in  his 
close,  which  at  least  gave  him  a  property  ratione  loci ;  and  they  are  laid  to 
be  taken  and  distrained  there;  but  what  follows  makes  it  still  stronger, 
for  in  the  demise  set  forth  in  the  plea,  and  on  which  the  question  de- 
l)ends,  they  are  several  times  called  the  deer  of  John  Davies,  the  plaintiff, 
and  he  is  at  liberty  to  dispose  of  them  as  his  own  before  the  expiration 
of  tl\e  term  on  the  condition  there  mentioned.  And  it  is  expressly  said 
that  the  defendants  distrained  the  deer  being  the  j)roperty  of  the  said 
John  Davies;  it  is  also  ])laiu  that  he  had  a  valuable  property  in  them, 
they  having  been  sold  for  £8G  19s,  both  which  facts  are  admitted  by  the 
demurrer.  The  plaintiff  therefore  in  this  case  is  estopped  to  say  either 
that  he  had  no  property  in  them  or  that  his  property  was  of  no  value. 
Besides  it  is  expressly  said  in  Bro.  Abr ,  tit.  "Property,"  pi.  44,  and 
agreed  in  all  the  books,  that  if  deer  or  any  other  things  ferce  natures 
become  tame  a  man  may  have  a  property  in  them.  And  if  a  man  steal 
such  deer  it  is  certainly  felony,  as  is  admitted  in  3  Inst.,  110,  and 
Hawk  P.  0.,  in  the  place  before  cited. 

Upon  a  supposition,  therefore,  which  I  do  not  admit  to  be  law  now, 
*^hat  a  man  can  have  no  property  in  any  but  tame  deer,  these  must  be 
akeu  to  be  tame  deer,  because  it  is  adiuitted  that  the  plaintiff'  had  a 
property  in  them. 

Second.  As  to  their  not  being  chattels  but  hereditaments  and  inci- 
dent to  the  park  and  so  not  distrainable,  several  cases  were  cited :  Oo. 
Lit.,  47  b.  and  7  Co.  17  b, ;  where  it  is  said  that  if  the  owner  of  a  park 
die  the  deer  shall  go  to  his  heir  and  not  to  his  executors;  and  the 
statute  of  Marlbridge  (52  Hen.  Ill,  c.  22),  where  it  is  said  that  no  one 
shall  distrain  his  tenants  de  libero  tenemento  suo  nee  de  aliquilms  ad 
liherum  tenementum  spectantibns.  I  do  admit  the  rule  that  heredita- 
anents  or  things  annexed  to  the  freehold  are  not  d'strainable;  and 
l)0S8ibly  in  the  case  of  a  parlc,  properly  so  called,  which  must  be  either 
by  grant  or  prescription,  the  deer  may  in  some  measure  be  said  to  bo 
incident  to  the  park;  but  it  does  not  appear  that  this  is  such  a  park, 
nay  it  must  be  taken  not  to  be  so.  In  the  declaration  it  is  stiled  the 
close  of  the  plaintiff,  called  Oaversham  Park.  In  the  plea  indeed  it  is 
stiled  a  park,  (tailed  (3aversham  Park ;  but  it  is  not  said  that  it  i«  a 
park  either  by  grant  or  prescription;  and  it  can  not  b">  taken  f/,.  b-u  io 
on  these  pleadings,  but  must  be  taken  to  be  a  close  whcr  J;'er  hai'- 
been  kept,  and  which  therefore  has  obtained  the  name  ofa^'urk,  bccaiise 
the  deer,  as  I  mentioned  before,  are  called  the  deer  of  John  Davies,  and 
because  ho  is  at  liberty  to  sell  them,  and  so  to  sever  them  from  the 
park  before  the  expiration  of  the  term.  And  in  Hale's  History  of  the 
Pleas  of  the  Crown  (1  vol.  fol.  491),  cited  for  the  defendants,  it  is  ex- 
l)resHly  said  thnt  there  maybe  «  park  in  reputation,  "as  if  a  man 
inclose  a  piece  of  ground  and  put  deer  iu  it,  but  that  makes  it  not  ^ 


APPENDIX    TO    PART    THIRD DIVISION    I. 


129 


park,  without  a  prescription  time  out  of  mind  or  the  King'.s  cluirter." 
(Vid.  Stat.,  21  Ed.  I,  de  malefavtoribus  in  parcis  there  referred  to). 

Third.  As  to  the  third  objection  that  the  deer  are  part  of  the  thing 
den.lsed,  and  consequently  not  diatrainable,  the  only  case  which  was 
cited  to  prove  this  was  the  case  of  tithes,  which  is  nothing  to  the  pur- 
pose; because  where  tithes  only  are  let  a  man  can  not  reserve  a  rent, 
it  being  only  a  personal  contract.  Without  denying  the  rule,  v  hlch  I 
believe  is  generally  true,  tlie  fact  here  will  not  warrant  it,  for  they  are 
not  part  of  the  thing  demised.  They  are  not  mentioned  in  the  descrip- 
tion of  the  particulars,  and  can  not  be  part  of  the  thing  demised  for 
?'ie:  reason  before  given,  becauge  they  may  be  sold  and  disposed  of  by 
plaintiff  before  the  expiration  of  the  demise. 

i^'oiu'th.  The  last  argument,  drawn  ah  inusitato,  though  generally  a 
very  good  one,  does  nrt  hold  in  the  present  case.  When  the  nature  of 
things  changes,  the  rules  of  law  :>mst  change  too.  When  it  was  holden 
that  deer  were  not  distrainable,  it  vvii"  because  they  were  kept  princi- 
pally for  pleasure  and  not  ibr  profit,  and  were  not  sold  and  turned  into 
money  as  they  are  now.  But  now  they  are  become  as  much  a  sort  of 
husbandry  as  horses,  cows,  sheei),  *>i'  ^W  •^ther  cattle.  Whenever  they 
are  so  and  it  is  universally  known,  it  would  be  ridiculous  to  say  that 
when  they  are  kept  merely  for  profit  they  are  not  distrainable  as  other 
cattle,  though  it  has  been  holden  that  tliey  were  not  so  when  they  were 
kept  only  for  pleasure,  The  rules  concerning  personal  estates,  which 
were  laid  down  when  jiersonal  estates  were  but  small  in  proportion  to 
lands,  are  quite  varied  both  in  courts  of  law  and  equity,  now  that  per- 
sonal estate;^  are  so  much  increased  and  become  so  considerable  a  part 
of  the  pr'Mterty  of  this  kingdom, 

Ther« ;'";  ,.  without  contradicting  the  reasons  which  are  laid  down 
concr-r  .»g  v.  Is  matter  in  the  ancient  books,  and  without  determining 
any*  ij.;:  vt'h  resi)ect  to  deer  in  forests  and  chases  or  parks  properly 
so  ca.'.eu.  fx  !  .  erning  which  we  do  not  think  it  necessary  to  determine 
anythino- ;  •  present,  we  are  all  of  opinion  that  we  are  well  warranted 
by  the  plea,  i'  ,,.s  to  determine  that  these  deer,  under  the  circumstances 
in  which  they  appear  to  have  been  kent  at  the  time  when  this  distress 
was  taken,  were  properly  and  legall;  distru'ned  for  the  rent  thai  was 
in  arrear. 

There  must  therefore  be  judgment  for  the  defendants. 
14749 9 


i  ,' 


lb' 


I'  I  11 


130 


AEGUMENT   OF   THE   UNITED   STATES. 


II.— The  Right  of  the  sd  States  to  Peotect  theik  Seal- 

ing lNTiL..^sTS  AND  Industry. 

The  principal  question  which  the  United  States  Government  con- 
ceives to  be  presented  for  the  decision  of  this  High  Tribunal,  is  thus 
stated  in  the  Case  of  the  United  States  (p.  299) : 

Whether  individuals,  not  subjects  of  the  United  States,  have  a  right 
as  against  that  Government  and  to  which  it  must  submit^  to  engage  in 
the  devastation  complained  of,  which  it  forbids  to  its  own  citizens,  and 
which  must  result  in  the  speedy  destruction  of  the  entire  property,  in- 
dustry, and  interests  involved  in  the  preservation  of  the  seal  herd. 

In  reply  on  its  part  to  this  question,  three  propositions  of  law  are  set 
forth  by  the  United  States  Government  in  its  Case  (p.  300) : 

First.  That  in  view  of  the  facts  and  circumstances  established  by 
the  evidence,  it  has  such  a  property  in  the  Alaskan  seal  herd,  as  the 
natural  product  of  its  soil,  made  chiefly  available  by  its  protection 
and  expenditure,  highly  valuable  to  its  people,  and  a  considerable 
source  of  public  revenue,  as  entitles  it  to  preserve  the  herd  from 
destruction  in  the  manner  complained  of,  by  an  employment  of  such 
reasonable  force  as  may  be  necessary. 

Second.  That,  irrespective  of  the  distinct  right  of  pro|)crty  in  the 
seal  herd,  the  United  States  Government  has  for  itself  and  for  its 
people,  an  itterest,  an  industry,  and  a  commerce  derived  from  the  legit- 
imate and  propel  use  of  the  produce  of  the  seal  herd  on  its  territory, 
which  it  is  entitled,  upon  all  principles  api)licable  to  the  case,  to  pro- 
tect against  wanton  destruction  by  individuals,  for  the  sake  of  the 
small  and  casual  profits  in  that  way  to  be  gained ;  and  that  no  part  of 
the  high  sea  is  or  ought  to  be  open  to  individuals,  for  the  purpose  of 
accomplishing  the  destruction  of  national  interests  of  such  a  character 
and  importance. 

Third.  That  the  United  States,  possessing  as  they  alone  possess,  the 
power  of  i)reserving  Jind  cherishing  this  valuable  interest,  are  in  a 
most  Just  sense  the  trustee  thereof  for  the  benefit  of  mankind,  and 
should  be  permitted  to  discharge  their  trust  without  hindrance. 


EIGHT   TO    PROTECT   INTERESTS   AND   INDUSTRY. 


131 


In  the  division  of  the  argument  tLat  Las  been  made  between  counsel 
for  convenience'  sake,  the  first  and  third  of  these  propositions,  which 
are  naturally  connected,  have  been  exhaustively  discussed  by  Mr. 
Carter. 


Before  proceeding  to  that  consideration  of  the  second  proposition 
which  is  the  principal  purpose  of  this  arj^ument,  the  undersigned  de- 
sires to  add  in  respect  to  the  first,  some  brief  suggestions,  which  are 
perhaps  only  a  restatement  in  a  different  form,  of  what  has  been  already 
advanced. 

Whatever  else  is  in  dispute,  certain  facts  in  relation  to  the  seal  herd, 
its  qualities,  and  its  necessities,  are  not  denied. 

The  seal  is  an  amphibious  animal,  polygamous,  altogether  sm»  generiSy 
and  very  peculiar  in  its  habits.  A  fixed  home  upon  laud  during  several 
months  ic  the  year  is  necessary  to  its  reproduction,  and  to  the  perpet- 
uation of  its  species.  It  has  established  this  home,  from  the  earliest 
known  period  of  its  existence,  on  the  Pribilof  Ishinds,  to  which  it  returns 
annually  with  an  unfailing  animus  revertendi  and  an  irresistible  in- 
stinct, and  where  it  remains  during  several  months,  and  until  the 
young  which  are  born  there  have  acquired  sufficient  growth  and 
strength  to  depart  on  their  periodic  and  regular  migration. 

While  on  land  it  submits  readily  to  the  control  of  man,  and  indeed 
commits  itself  to  his  protection.  And  it  is  testified  by  credible  wit- 
nesses that  every  seal  in  the  herd,  were  it  desired,  could  be  branded 
with  the  mark  of  the  United  States. 

The  Government  has  fostered  and  protected  the  seals,  as  did  the 
Russian  Government,  its  predecessor  in  the  ownership  of  tlv.  'i  islands, 
by  careful  legislation  and  by  constant  and  salutary  executive  control, 
and  has  established  out  of  the  seal  products  an  important  and  valuable 
industry.  Without  this  protection  the  animal  would  long  since  have 
been  exterminated,  as  it  has  been  almost  everywhere  else. 

When  the  female  seals  arrive  on  tie  islands,  they  rre  pregnant  with 
the  young  which  were  begotten  there  during  the  previous  season. 
After  the  young  are  born,  the  mothers,  while  suckling  them,  are 
accustomed  almost  daily,  and  from  necessity,  to  run  out  to  sea  beyond 
the  limits  of  the  territorial  waters  in  pursuit  of  food,  leaving  the  young 
on  the  islands  during  their  absence. 

Upon  these  facts  alone,  it  is  insisted  by  theUnited  States  Government, 
that  it  has  such  a  property  in  the  seal  herd,  the  produce  of  its  territory 
and  appurtenant  thereto,  as  entitles  that  Government  to  protect  it 
fiomextermiuatioi.  or  other  unauthorized  and  iiyurious  interference. 


'"'I 


132 


ARGUMENT   OF   THE   UNITED   STATES. 


r 
■  ^ 
Mil 

m 


The  complete  right  of  property  in  the  Government  while  the  animals 
are  upon  the  shore  or  within  the  cannon-shot  range  which  marks  the 
limit  of  territorial  waters  can  not  be  denied.  The  only  question  is 
whether  it  has  such  a  right  outside  of  that  line,  while  the  seals  are  on 
their  way  to  the  islands  in  the  regular  progress  of  their  migration  at 
the  season  of  reproduction,  or  when,  while  remaining  on  the  islands, 
the  females  are  passing  to  and  fro  in  the  open  sea  in  quest  of  the  food 
necessary  to  sustain  the  young  left  there,  and  which  would  perish  if 
their  mothers  were  destroyed.  The  clear  statement  of  this  question 
and  of  the  facts  upon  which  it  depends,  would  seem  to  render  its  answer 
obvious. 


(1)  Even  upon  the  ordinary  principles  of  municipal  law  as  adminis- 
tered in  courts  of  justice,  such  a  property  would  exist  under  the  cir- 
cumstances stated.  It  is  a  general  rule,  long  settled  in  the  common 
law  of  England  and  America,  thatwhere  useful  animals,  naturally,  wild 
have  become  by  their  own  act,  or  by  the  act  of  those  who  have  sub- 
jected them  to  control,  established  in  a  home  upon  the  land  of  such  per- 
sons, to  which  the  animals  have  an  animum  revertendi  or  fixed  habit  of 
return,  and  do  therefore  regularly  return,  where  they  are  nurtured,  pro- 
tected, and  made  valuable  by  industry  and  expenditure,  a  title  arises 
in  the  proprietors  of  the  land,  which  enables  them  to  prevent  the  de- 
struction of  the  animals  while  temporarily  absent  from  the  territory 
where  they  belong;  a  title,  however,  which  would  be  lost  should  they 
abandon  permanently  their  habit  of  return,  and  regain  their  former  wild 
state 

It  u  under  this  rule,  the  justice  of  which  is  apparent,  that  property  is 
admitted  in  bees,  in  swans  and  wild  geese,  in  pigeons,  in  deer,  and  in 
many  other  animals  originally /erce  natiirce,  hut  yet  capable  of  being 
partially  subjected  to  the  control  of  man,  as  is  fully  shown  by  the 
numerous  authorities  cited  in  and  appended  to  Mr.  Carter's  argument; 
and  that  point  need  not  be  further  elaborated.^  The  case  of  the  seals 
is  much  !i»tronger,  in  consequence  of  tlieir  peculiar  nature  and  habits  of 
life.  Tlieir  home  on  American  soil  is  not  only  of  their  own  selection, 
but  is  a  permanent  home,  necessary  to  their  existence,  and  in  respect  to 
which  they  never  lose  the  animum  revertendi.    Dpon  the  evidence  i n 

'  See  aleo  the  cixaea  of  Hanuam  v.  Mockett,  2  Barnowall  v.  Cresswell's,  Rep.,  p. 
943;  Keeble  v,  Hicherinsill,  Holt's  Rep.,  p.  17,  and  Carrington  r.  Taylor,  I  East's 
Rop.,  p.  571,  and  Reporter's  note,  from  wliich  ostractd  are  givuu  in  appoadix  to  this 
portion  of  the  arguiueut,  p.  180. 


RIGHT   TO    PROTECT    INTERESTS   AND    INDUSTRY. 


133 


this  case  it  is  gravely  to  be  doubted,  whether  if  the  United  States  Gov- 
ernment should  now  repel  tliem  from  the  Pribylof  Islands,  and  prevent 
henceforth  thcii-  landing  there  as  they  are  accustomed  to  do,  there  is 
any  other  land  in  those  seas,  affording  the  requisite  qualities  of  soil, 
climate,  atmosphere,  approach,  propinquity  to  the  water,  food,  and 
freedom  from  disturbance,  on  which  they  would  be  able  to  reestablish 
themselves,  so  as  to  continue  their  existence. 

Especially  does  the  rule  of  law  above  stated  apply  to  animals,  which 
in  their  temporary  departure  from  their  accustomed  home,  enter  upon 
no  other  jurisdiction,  and  derive  neither  sustenance  nor  protection  from 
any  other  proprietor,  but  only  pass  through  the  waters  of  the  common 
highway  of  nations,  where  all  rights  are  relative. 

• 

(2)  But  upon  the  broader  principles  of  international  law  apiilica- 
ble  to  the  case,  the  right  of  property  in  these  seals  in  the  United 
States  Government  becomes  still  clearer.  Where  animals  of  any 
sort,  wild  in  their  original  nature,  are  attached  and  become  appur- 
tenant to  a  maritime  territory,  are  not  inexhaustible  in  their  pro- 
duct, are  made  the  basis  of  an  iniportant  industry  on  such  territory, 
and  would  be  exterminated  if  thrown  open  to  the  general  and  unre- 
stricted pursuit  of  mankind,  they  become  the  just  property  of  the 
nation  to  which  they  are  so  attached,  and  from  which  they  derive  the 
protection  without  which  they  would  cease  to  exist,  even  though  in 
the  habits  or  necessities  of  their  life  some  of  them  pass  from  time  to 
time  into  the  adjacent  sea,  beyond  those  limits  which  by  common  con- 
sent and  for  the  purposes  of  defense,  are  regarded  as  constituting  a  part 
of  the  national  territory.  In  such  a  case  as  this,  the  herd  and  the 
industry  arising  out  of  it  become  indivisible,  and  constitute  but  one 
proprietorship. 

While  the  United  States  Government  asserts  and  stands  upon  the 
full  claim  of  property  in  the  seals  which  we  have  attempted  to  establish, 
it  is  still  to  bo  borne  in  mind  that  a  more  qualitied  right  would  yet  be 
sufllcient  for  the  actual  requirements  of  the  present  case.  The  ques- 
tion here  is  not  what  is  the  right  of  ownership  in  an  individual 
seal,  should  it  wander  in  some  other  period  into  some  other  and  far 
distant  sea;  that  is  an  inquiry  not  essential  to  be  gone  into;  but  what 
is  the  right  of  property  in  the  herd  as  a  whole,  i  i  the  seas,  and  under 
tlie  circumstances,  in  which  it  is  thus  availed  of  by  the  United  States 
Government  as  the  foundation  of  an  important  national  concern,  and  in 


,f 


^f  r  r 


134 


ARGUMENT   OF    THE    UNITED    STATES. 


wbicli  it  is  assailed  by  the  Canadians  in  the  manner  complained  of! 
When  this  point  is  determined,  all  the  dispute  that  has  arisen  in  this 
case  is  disposed  of. 

The  principle  of  law  last  stated  is  not  only  asserted,  without  con- 
tradiction, by  the  autlioritative  writers  upon  international  jurispru- 
dence, but  has  been  acted  upon,  with  the  assent  of  all  nations,  in  every 
case  that  has  arisen  in  civilized  times,  within  the  conditions  above 
stated.  And  upon  that  tenure  is  held  and  controlled  to-day,  by  nations 
whose  borders  are  upon  the  sea,  all  similar  property,  of  many  descrip- 
tions, that  under  like  circumstances  is  known  to  exist. 
'Says  Puffendorf  (Law  of  Nature  and  Nations,  book  4,  chap.  6,  sec.  7) : 

As  for  fishing,  though  it  hath  much  more  abundant  subject  in  the  sea 
than  in  lakes  or  rivers,  yet  'tis  manifest  that  it  may  in  part  be  ex- 
hausted, and  that  if  all  nations  should  desire  such  right  and  liberty 
near  the  coast  of  any  particular  country,  that  country  must  be  very 
much  prejudiced  in  this  respect;  especially  since 'tis  very  usual  that 
some  particular  kind  of  fish,  or  perhaps  some  more  i»reciou8  commodity, 
as  pearls,  coral,  amber,  or  the  like,  are  to  be  found  only  in  one  part  of 
the  sea,  and  that  of  no  considerable  extent.  In  this  case  there  is  no 
reason  why  the  borderers  should  not  rather  challenge  to  themselves 
this  happiness  of  a  wealthy  shore  or  sea  than  those  who  are  seated  at 
a  distance  from  it. 

Says  Vattel  (Book  1,  chap.  23,  sec.  287,  p.  326): 

The  various  uses  of  the  sea  near  the  coasts  render  it  very  susceptible 
of  property.  It  furnishes  fish,  shells,  pearls,  amber,  etc. ;  now  in  all 
these  respects  its  use  is  not  inexhaustible.  Wherefore,  the  nation  to 
whom  the  coasts  belong  may  appropriate  to  tbemselvci.,  and  couv'ert 
to  their  own  profit,  an  advantage  which  nature  has  so  placed  within 
their  reach  as  to  enable  them  conveniently  to  take  possession  of  it,  in 
the  same  manner  as  they  possess  themselves  of  the  dominion  of  the  land 
they  inhabit.  Who  can  doubt  that  the  pearl  fisheries  of  Bahrem  and 
Ceylon  may  lawfully  become  property?  And  though,  where  the  catch- 
ing of  fish  is  the  only  object,  the  fishery  appears  less  liable  to  be 
exhausted,  yet  if  a  nation  have  on  their  coasts  a  particular  fishery  of  a 
profitable  nature,  and  of  which  they  may  become  masters,  shall  they 
not  be  permitted  to  appropriate  to  themselves  that  bounteous  gift  of 
nature  as  an  appendage  to  the  country  they  possess,  and  to  reserve  to 
themselves  the  great  advantages  which  their  commerce  may  thence 
derive,  in  case  there  be  a  sufficient  abundance  of  fish  to  furnish  the 
neighboring  nations!  •  *  •  {Sec,  288.)  A  nation  may  appropriate 
to  herself  those  things  of  which  the  free  and  common  use  would  be  prej- 
udicial or  dangerous  to  her.  This  is  a  second  reason  for  which  govern- 
ments extend  their  dominion  over  the  sea  along  their  coasts,  as  far  as 
they  are  able  to  protect  their  right. 

Another  suggestion  is  pertinent  to  the  question. 
The  whole  herd  owes  its  existence,  not  merely  to  the  care  and  protec- 
tion, but  to  the  forbearance  of  the  United  States  Government  within  its 


RIGHT   TO    PROTECT   INTERESTS   AND   INDUSTRY. 


135 


exclusive  jurisdiction.  While  the  seals  are  upon  United  States  terri- 
tory during  the  season  of  reproduction  and  nurture,  that  Government 
might  easily  destroy  the  herd  by  killing  them  all,  at  a  considerable 
immediate  profit.  From  such  a  slaughter  it  is  not  bound  to  refrain,  if 
the  only  object  is  to  preserve  the  animals  long  enough  to  enable  them 
to  be  exterminated  by  foreigners  at  sea.  If  that  is  to  be  the  result,  it 
would  be  for  the  interest  of  the  Government  and  plainly  within  its 
right  and  powers,  to  avail  itself  at  once  of  such  present  value  as  its 
property  possesses,  if  the  future  product  of  it  can  not  be  preserved. 
Can  there  be  more  conclusive  proof  than  this  of  such  lawful  posses- 
sion and  control  as  constitutes  property,  and  alone  produces  and  con- 
tinues the  existence  of  the  subject  of  itt 

The  justice  and  propriety  of  these  propositions,  their  necessity  to  the 
general  interests  of  mankind,  and  the  foundation  ui)on  which  they  rest 
in  the  original  p.inciples  from  which  rights  of  ownership  are  derived, 
have  been  clearly  and  forcibly  pointed  out  by  Mr.  Carter. 

In  a  later  part  of  this  argument  (pp.  164-169)  many  instances,  past  and 
present,  in  respect  to  nmny  descriptions  of  marine  and  submarine  prop- 
erty, from  many  nations,  and  from  Great  Britain  and  its  colonies  espe- 
cially, are  gathered  together  to  show  what  the  usage  of  mankind  on  this 
subject  has  been  and  is.  It  is  that  general  usage  which  constitutes  the 
law  of  this  case.  And  on  this  point,  if  it  can  be  shown  that  any  different 
usage  has  ever  prevailed  in  the  case  of  any  nation  able  to  assert  its  inde- 
pendence, touching  any  similar  property  on  which  it  set  value,  let  such 
evidence  be  produced  by  those  who  are  able  to  And  it,  and  whose 
claims  it  will  subserve.  If  in  this  instance  the  United  States  Govern- 
ment has  no  right  of  property  which  it  is  entitled  to  protect,  the  case 
would  present  the  singular  anomaly  of  being  the  only  one  in  which 
that  right  has  not  been  maintained,  in  respect  to  any  valuable  marine 
product  similarly  situated,  or  appurtenant  in  like  manner  to  the  terri- 
tory of  a  maritime  country. 

It  is  against  this  view  of  the  case,  too  obvious  to  escape  the  attention 
of  the  distinguished  counsel  for  Her  M.ajesty's  Government,  that  they 
have  chiefly  sti'Uggled  throughout  the  British  Counter  Case,  for  which 
they  have  thought  it  right  to  reserve  their  contentions,  both  in  propo- 
sitions and  evidence,  in  respect  to  the  principal  questicms  involved. 
But  they  have  struggled  in  vain.  The  broad  facts  upon  which  it  rests 
are  either  admitted  or  are  incontestable.  No  mere  attempt  to  dispar- 
age or  diminish  them,  no  cavil  over  details,  no  conjectural  suggestions 


^:  5  ^'  i\ 


1'' 


>i 


r 


136 


a 


ARGUMENT   OF   THE   UNITED   STATES. 


nTiaustaincd  by  proof,  can  break  their  force  or  change  their  effect. 
And  the  legal  (soncluaions  to  which  they  conduct,  can  not  be  regarded 
at  this  day  as  open  to  serious  question. 

The  case  of  the  United  States  has  thus  far  proceeded  upon  the 
ground  of  a  national  property  in  the  seal  herd  itself.  Let  it  now  be 
assumed,  for  the  purposes  of  the  argument,  that  no  such  right  of  property 
is  to  be  admitted,  and  that  the  seals  are  to  be  regarded,  outside  of  ter- 
ritorial waters,  asferce  naturce  in  the  full  sense  of  that  term.  Let  them 
be  likened,  if  that  be  possible,  to  the  fish  whose  birthplace  and  home 
are  in  the  open  sea,  and  which  mly  approach  the  shores  for  the  purpose 
of  food  at  certain  ecasons,  in  such  numbers  as  to  render  the  fishing 
there  productive. 

The  question  then  remains,  whether  upon  that  hypothesis,  the  indus- 
try established  and  maintained  by  the  United  States  Government  on 
the  Pribilof  Islands,  in  the  taking  of  the  seals  and  the  commerce  that 
is  based  upon  it,  are  open  to  be  destroyed  at  the  pleasure  of  citizens  of 
Canada,  by  a  method  of  pursuit  outside  the  ordinary  line  of  territorial 
jurisdiction,  which  must  result  in  the  extermination  of  the  anjaals. 
Is  there,  even  in  that  view  of  the  case,  any  principle  of  international 
law  which  deprives  the  United  States  Government  of  the  right  to  de- 
fend itself  against  this  destruction  of  its  unquestioned  interests,  planted 
and  established  on  its  own  territory?  In  other  words,  is  the  fight  of 
individual  citizens  of  another  country  to  the  temporary  profit  to  be 
derived  out  of  such  extermination,  superior  on  the  high  sea  to  that 
of  the  United  States  Government  to  protect  itself  against  the  conse- 
quences. 

This,  if  the  strict  right  of  property  can  be  successfully  denied,  is  the 
precise  question  addressed  to  the  consideration  of  the  Tribunal.  Ab- 
stract speculations  can  only  be  useful,  so  far  as  they  tend  to  conduct 
to  a  just  determination  of  it. 

Before  proceeding  to  a  discussion  of  this  question,  the  material  facts 
and  conditions  upon  which  it  arises  should  be  clearly  perceived  and 
understood.  For  it  is  upon  these  and  not  upon  theoretical  considera- 
tions that  the  argument  reposes. 

(1)  It  is  to  be  observed  in  the  first  place,  that  the  interest  in  the 
business  which  it  "s  sought  to  protect,  is  an  important  interest  and 
resource  of  the  Government  itself. 

The  seal  industry  on  these  islands  was  one  of  the  principal  induce- 
ments to  the  purchase  of  Alaska  by  the  United  States  from  the  lius- 


RIGHT   TO   PROTECT   INTERESTS    AND    INDUSTRY. 


137 


siiiu  Government,  for  a  large  sum  of  money.  The  care  and  pursnit  of 
the  seals  were  immediately  made  the  subject  of  legislation  by  Congress, 
under  which  the  whole  business  has  been  since  regulated,  protected, 
and  carried  on  by  the  Government,  as  it  had  been  before  by  Russia,  in 
such  manner  as  to  preserve  the  existence  and  to  increase  the  numbers 
of  the  seal  herd,  and  to  make  its  product  valuable  to  those  engaged 
in  it,  and  a  source  of  a  considerable  public,  revenue  to  the  Government. 
(See  U.  S.  lie  vised  Statutes,  sees.  195G-1975.) 

It  pays  to  the  Government,  as  the  evidence  shows,  a  direct  revenue 
of  about  $10  per  skin,  and  a  considerable  indirect  revenue  upon  the  im- 
])ortation  of  the  dressed  furs;  and  to  the  company,  which  under  lease 
from  the  Government  and  subject  to  its  regulations  carries  on  the 
business,  it  affords  a  large  annual  return,  which  enables  them  to  make 
their  payments  to  the  Government.  To  the  inhabitants  of  the  islands 
and  many  others  directly  employed  or  indirectly  concerned,  it  gives  the 
means  of  subsistence. 

Nor  are  the  United  States  alone  the  recipients  of  the  profits,  or  in- 
terested to  preserve  this  industry.  The  principal  manufacture  of  mer- 
chantable furs  from  the  raw  skins  is  carried  on  in  London,  where  large 
houses  are  engaged  in  it,  employing  as  the  proof  shows,  between  2,000 
and  3,000  persons.  London  is  also  the  headquarters  of  the  trade  in  the 
product,  and  of  the  commerce  through  which  it  is  distributed.  It  is 
probable  that  the  interest  of  Great  Britain  in  the  preservation  of  the 
seal  herd  is  almost  as  great  as  that  of  the  United  States. 

The  civilized  world  outside  of  these  two  countries  is  likewise  con- 
cerned in  preserving  from  extinction  the  valuable  product  of  these 
islands.  It  enters  largely  into  human  use;  there  is  no  substitute  for 
it,  especially  in  view  of  the  great  decrease  of  fur-bearing  animals;  and 
nowhere  else  on  the  globe  is  the  seal  fur  produced  in  any  considerable 
quantities.  Almost  everywhere  this  valuable  animal  has  been  exter- 
minated, by  the  same  reckless  and  wasteful  pursuit  that  is  complained 
of  here.   ' 

It  is  pertinent  to  remember,  in  this  connection,  that  if  the  nation 
that  is  contending  for  the  preservation  of  this  product  of  its  territory 
was  but  small  and  poor,  and  this  resource  for  revenue  and  subsistence, 
instead  of  being  one  out  of  many,  were  the  only  one  it  possessed,  so  that 
its  very  existence  depended  upon  the  maintenance  of  it,  the  principles 
of  international  law  applicable  to  the  subject  would  be  precisely  the 
same  as  they  are  now.    The  case  would  be  relatively  of  greater  im- 


,'!i 


I '. 


V'-i 


V        •■         'I        J 


I  4  '•  .!, 

1 " 


i{, 


I 


! 


138 


^ 


ARGUMENT   OP   THE    UNITED    STATES. 


portance  to  one  of  the  parties;  the  law  that  would  control  it  would  be 
the  law  that  coiitrols  this  case;  for  a  nation  has  the  same  right  to 
defend  one  niat<»-rial  interest,  or  one  class  of  citizens,  tliat  it  has  to  de- 
fend all  it  possesses,  and  all  the  conditions  of  its  existence. 

(2)  The  pursuit  of  the  seals  in  the  open  sea,  at  the  times  and  in  the 
nninner  complained  of,  leads  to  the  early  extermination  of  the  whole 
herd. 

It  is  not  necessary  to  the  argument  that  this  extreme  result  should 
be  made  out.  It  would  be  enough  to  show  that  the  interest  in  question 
is  seriously  embarrassed  and  prejudiced,  or  its  i)roduct  materially  re- 
duced, even  though  it  were  not  altogether  destroyed.  But  the  evidence 
in  the  case,  of  which  a  large  amount  has  been  submitted,  completely 
establishes  the  fact  that  the  herd  has  by  these  means  been  already 
largely  diminished,  and  that  it  must  necessarily,  if  the  same  conduct 
is  continued,  be  at  no  distant  day  entirely  annihilated. 

(3)  The  method  of  pursuit  employed  by  the  Canadian  vessels,  and 
against  which  the  United  States  Government  protests,  not  only  tends  to 
the  rapid  extermination  of  the  seal,  but  is  in  itself  barbarous,  inhuman, 
and  wasteful. 

A  very  large  proportion  of  the  seals  taken  are  females,  either  preg- 
nant and  about  to  give  birth  to  their  young,  or  engaged  in  sue). ling 
their  offspring,  which,  by  the  killing  of  the  mothers,  are  left  to  perish  in 
great  numbers  by  starvation.  Some  are  in  both  these  conditions  at  the 
same  time.  And  of  those  thus  destroyed  in  the  Avater,  r  considerable 
share  certainly,  and  probably  a  very  large  share,  are  lost  to  the  hi  liter. 

The  killing  of  female  seals  at  any  time  is  made  criminal  by  the  stat- 
utes of  the  United  States.    (U.  S.  Revised  Statutes,  sec.  19G1). 

The  destruction  during  the  breeding  season  of  wild  animals  of  any 
kind  which  are  in  any  respect  useful  to  man,  is  prohibited,  not  only  by 
all  the  instincts  of  humanity,  but  by  the  lavfs  of  evei'y  civilized  coun- 
try, and  especially  by  the  laws  cf  the  United  States  and  of  Great  Brit- 
ain. That  protection,  as  will  be  more  fully  pointed  out  hereafter,  has 
long  been  and  now  is  extended  to  the  seals  in  every  country  in  the 
world  where  they  are  to  be  found.  In  no  part  of  the  world  that  is 
within  territorial  jurisdiction  could  such  conduct  take  j)lace,  without 
exposing  the  perpetrator  to  criminal  prosecution  (see  Case  of  the  United 
States,  pp.  220-229).  So  that  in  order  to  justify  it  in  this  case,  the  sea 
must  be  held  to  be  free  for  acts  which  are  not  only  destructive  of  the 
Valuable  interests  of  an  adjacent  nation,  but  are  forbidden  everywhere 
else  by  universal  law. 


BIGHT   TO   PROTECT   INTERESTS   AND    INIU'STRY. 


130 


(4)  The  depredations  in  question,  dignified  in  tlie  Keport  of  tlio 
British  Commissioners  by  the  name  of  an  "industry,"  are  the  work  of 
individuals  who  fit  out  vessels  for  this  purpose.  Their  number,  though 
increasing,  is  not  great.  The  business  is  speculative,  and  as  a  whole 
not  remunerative,  though  it  has  instances  of  largo  gains  which  stimu- 
late the  enterprise  of  those  concierned,  and  make  the  prospect  attract- 
ive, like  all  occui)ation8  which  have  a  touch  of  adventure,  an  ele- 
ment of  gambling,  and  a  taste  of  cruelty. 

It  is  this  casual  and  uncertain  proflt,  of  these  comi.aratively  few  in- 
dividuals, which  must  of  course  terminate  when  the  seal  herd  is  de- 
stroyed or  even  much  reduced,  that  is  to  be  balanced  a  rains fc  the  loss 
that  will  be  sustained  by  the  United  States,  if  that  desLruction  is  com- 
pleted. 

(5)  Against  this  injury,  which  the  United  States  Government  has 
made  the  subject  of  vain  remonstrance,  there  are  absolutely  no  means 
of  defense  that  can  be  matle  available  within  the  limits  of  territorial 
jurisdiction.  The  destruction  is  wrought  outside  those  limits,  and 
must  be  repressed  there  or  it  can  not  be  repressed  at  all. 

As  it  is  impossible,  when  seals  are  hunted  in  the  water,  that  the  sex 
can  ever  be  discriminated  before  the  killing  takes  place,  it  follows  that 
if  what  is  called  "pelagic  sealing"  is  allowed  to  be  carried  on,  the 
enormous  proportion  of  pregnant  and  suckling  females  and  of  nursing 
young  before  referred  to,  must  continue  to  be  destroyed. 

That  method  of  pursuit  conduces  also  unavoidably  to  injurious  raids 
by  those  concerned  in  it,  upon  the  seals  on  the  islanus.  The  extent  of 
the  shores  and  the  peculiarity  of  the  climate  and  atmosphere,  as  des- 
cribed in  the  evidence,  make  it  extremely  difficult  and  at  times  impos 
sible  to  maintain  such  vigilance  as  will  prevent  these  incursions,  if  seal- 
hunting  in  the  neighboring  waters  is  permitted.  The  result  of  these 
raids  is  suggested  in  the  British  Counter  Case  as  one  of  the  means  by 
which  the  gradual  extermination  of  the  seals,  too  obvious  to  be  de- 
nied, is  taking  place.  How  much  the  suggestion  is  worth,  will  be  seen 
when  the  whole  evidence  is  reviewed.  But  the  counsel  seem  to  forget, 
in  making  it,  that  it  is  only  the  toleration  of  foreign  sealing  vessels  in 
waters  near  the  islands,  that  renders  such  raids  possible. 

The  inevitable  conclusion  from  these  facts  is,  that  there  is  an  absolute 
necessity  for  the  repression  of  killing  seals  in  the  water  in  the  seas  near 
the  Pribilof  Islands,  if  the  herd  is  to  be  preserved  from  extinction.  No 
middle  course  is  practicable  consistently  with  its  preservation. 


140 


ARGUMENT   OP   THE   UNITED    STATES. 


The  evidence  iulduced  on  the  part  of  the  United  States  in  support  of 
the  foregoing  pro])osition8  of  fact,  and  that  relied  upon  to  the  contrary, 
80  far  as  we  have  had  an  opportunity  to  see  it,  is  fully  discussed  in  a 
later  branch  ot  the  argument  (infra,  pp.  228-313). 

The  ground  upon  whicli  the  destruction  of  the  seal  is  sought  to  be 
instilled,  is  that  the  open  sea  is  free ;  and  that  since  this  slaughter  takes 
jdace  there,  it  is  done  in  the  exercise  of  an  indefeasible  right  in  the 
individuals  engaged  in  it;  that  the  nation  injured  can  not  defend  itself 
on  the  sea,  and  therefoT-'»,  upon  the  circumstances  of  this  case  can  not 
defend  itself  at  all,  let  the  consequences  be  what  they  may. 

The  United  States  Government  denies  this  proposition.  While  con- 
ceding and  interested  to  maintain  the  general  rule  of  the  freexlom  of 
the  sea,  as  established  by  modern  usage  and  consensus  of  opinion,  it 
asserts  that  the  sea  is  free  only  for  innocent  and  inoffensive  use,  not 
injurious  to  the  just  interests  of  any  nation  which  borders  upon  it; 
that  to  the  invasion  of  such  interests,  for  the  purposes  of  private  gain, 
it  is  not  free;  that  the  right  of  self-defense  on  the  part  of  a  nation  is 
a  perfect  and  paramount  right,  to  which  all  others  are  subordinate, 
and  which  upon  no  admitted  theory  of  international  law  has  ever  been 
surrendered;  that  it  extends  to  all  the  material  interests  of  a  nation 
important  to  be  defended;  that  in  the  time,  the  place,  the  manner,  anr. 
the  extent  of  its  execution,  it  is  limited  only  by  the  actujil  necessity  of 
the  particular  case;  that  it  may,  therefore,  be  exercised  upon  the  high 
sea,  as  well  as  upon  the  land,  and  even  upon  the  territory  of  other  and 
friendly  nations,  provided  only  that  the  necessity  for  it  ])laiuly  ap- 
pears; and  that  wherever  an  important  and  just  jh^tional  interest  of 
any  description  is  put  in  peril  for  the  sake  of  individaal  profit  by  an 
act  upon  the  high  sea,  Q'^en  though  such  act  would  b*:  otherwise  justi- 
fiable, the  right  of  the  individual  must  give  Avay,  and  the  nation  will 
be  entitled  to  protect  itself  against  the  injury,  by  whatever  force  may 
be  reasonably  necessary,  according  to  the  usages  established  in  aual- 


agous  cases. 


It  is  believed  that  these  general  principles  will  be  found  to  underlie 
the  whole  theory  and  system  of  the  law  of  the  sea,  so  far  as  it  has  been 
formulated  by  the  consent  and  usage  of  mankind;  that  they  are  the 
foundation  of  many  maritime  rights,  long  recognized  and  established; 
that  they  have  received  the  sanction  of  courts  of  justice  whenever  they 
have  been  brought  under  judicial  consideration,  and  of  all  writers  upon 
the  subject  whoso  views  are  entitled  to  weight;  that  they  are  8ui)portecl 


EIGHT   TO    PROTECT    I^JTERESTS    AND    INDUSTRY. 


141 


by  many  historic  precedents,  the  rightfulness  of  which  lias  never  been 
called  in  question;  and  that  no  precedent  or  authority  can  be  pro- 
duced, judicial,  juridical,  or  historical,  for  sucli  a  riglit  iu  the  open  sea 
as  is  claimed  by  the  Canadians  in  the  present  case. 

That  the  sea  was  at  an  early  day  regarded  as  subject  to  no  law  is 
probably  true.  It  was  the  theatre  of  lawless  violence  and  the  home  of 
piracy.  But  this  condition  wiis  soon  found  intolerable.  The  assump- 
tion of  a  dominion  over  it  by  adjacent  maritime  nations  became  a  neces- 
sity to  self-i)rotectioii,  and  was  therefore  generally  assented  to.  Tlie 
mare  liberum  in  all  such  waters  gave  way  to  mare  dausnm^  not  ujum 
principle,  but  for  the  sake  of  defense.  Says  Sir  Ueury  Maine  (Lectures 
upon  International  Law,  pp.  75-77): 

The  first  branch  of  our  inquiry  brings  us  to  what,  at  the  birth  of  in- 
ternational law,  was  one  of  the  most  bitterly  dispute<l  of  all  ques- 
tions, the  question  of  marv  dausum  and  mare  iiberwm — sea  under  tiie 
dominion  of  a  particular  jtiwer,  or  sea  open  to  all — names  identilicd 
with  the  great  reputaticms  of  Grotius  and  Selden,  In  all  iir()l)al)i!ity 
tlie  questicm  '.vould  not  have  arisen  but  for  the  dictum  of  the  institu- 
tional iioman  writers  that  ohe  sea  was  by  nature  common  propeity. 
A  nd  the  moot  point  was  whet!  er  there  was  anytliing  in  nature,  wliat- 
ever  that  word  might  havf  meant,  which  either  pointed  to  the  com- 
iiiuuity  of  sea  or  of  rivers;  and  also  what  did  history  siiow  to  have  been 
the  actual  practice  of  maniiind,  and  whether  it  pointed  in  any  definite 
way  to  a  general  sense  ol  mankind  on  the  subject.  We  do  not  know 
exactly  what  was  in  the  mind  of  a  Itoman  lawyer  when  he  si)oke  of 
nature.  Nor  is  it  easy  for  us  to  form  even  a  speculative  o])ini()M  as  to 
what  can  h.ave  bee®  the  actual  condition  oi'  the  sea  in  those  primitive 
ages,  somehow  associated  with  the  conception  of  natmw  The  slender 
evidence  before  us  seems  to  suggest  that  the  sea  at  first  wa-'  common, 
only  in  the  sense  of  being  universally  open  to  deiredatioi;.     *    *     * 

Whatever  jurisdiction  may  have  been  asserted,  prol  Udy  did  not 
spring  from  anything  wuich  may  be  called  nature,  but  was  perhaps  a 
security  against  piracy.  At  all  events  tliis  is  certain,  that  the  earliest 
development  of  maritime  law  seems  to  have  consisted  in  a  movement 
trom  m,are  liberum^  whatever  that  may  have  nu^int,  to  mare  clausum — 
Irom  navigation  in  waters  over  which  nobody  claimed  authority,  to 
waters  under  the  control  of  a  separate  sovereign.  The  ('h)sing  of  seas 
meant  delivery  from  violent  dHpredation  at  the  cost  or  by  the  exertion 
111'  some  ])ower  or  powers  stronuer  than  the  rest.  No  doubt  sovereignty 
<iver  water  began  as  a  benetit  to  all  navigators,  and  it  ended  iu  taking 
tlie  form  of  protection.' 

'  Sir  Henry  Maine  procoecLs  iw  follows:  "Mr.  W.  E.  Hall,  in  a  very  intcrestiug 
(chapter  of  his  voliimo  (I'art  v  'J)  liiih  siiowii  that  intorniitioiial  law,  iu  the  inodern 
Nciise  of  the  worc's,  bes^an  in  a  genural  system  of  mare  vtaiisiim.  The  Adriatic,  the 
Gulf  of  Genoa,  tlio  North  8oa,  and  the  Baltie  were  all  closed  und  were  under  atitlior- 
ity,  and  England  claimed  to  have  precedence  anil  to  exercise  jurisdiction  of  various 
kiudsfroiu  thoNorth  Sea  and  tlie  parts  of  the  Atlantic  ad.joiu  inf{  Scotland  and  Irelauil, 
south i\  u..<l8  to  the  bay  of  Uiscay .  In  all  these  waters  the  omission  to  lower  the  fla;;  to  a 
UritialiBhip  would  have  boon  followed  by  a  cannon  shot.    I'hunceforwurd  the  progress 


I 


m. 


.!• 


142 


ARGI'MENT   OP   THE   UNITF-D   STATES. 


f 


When  comraorce  became  more  extensive  and  better  able  to  protect 
itself,  the  modern  conception  of  the  freedom  of  the  sea,  lirst  formally 
set  forth  by  Grotina,  came  gradually  to  be  established.  But  the  con- 
trary doctrine  was  contended  for  by  the  groat  judicial  authorities  in 
England.  The  views  of  Sir  Matthew  liale  and  of  Selden  are  well 
known.  The  powerful  argument  of  the  latter  is  a  permaneut  monu- 
ment of  the  contention  of  his  time  in  England.  The  opinion  of  Black- 
stone  was  to  tlie  same  effect.  As  late  as  1824  another  eminent  English 
writer,  Mr.  Ghitty,  in  his  Commercial  Law,  maintained  the  right  of 
dominion  by  maritime  nations  over  neighboring  seas,  founded  upon 
the  ne(!essities  of  their  situation.  The  surrender  by  England  and  other 
niaritin.3  powers  of  their  control  over  tlie  seas,  so  long  maintained,  in 
deferen(;e  to  the  glowing  sentiment  of  the  world  and  tlie  demands  of 
fiee  commerce,  was  slowly  and  reluctantly  given.  But  that  surrender 
was,  as  universally  understood,  for  the  purposes  of  just,  innocent,  and 
mutually  profitably  use  by  the  nations  whose  borders  touched  the  sea. 
It  was  not  thrown  open  again  to  general  lawlessness.  The  whole  argu- 
ment in.  favor  of  the  freedom  of  the  sea  was  based  upon  the  ground 
that  its  free  use  by  mankind  was  inoffensive  and  harmless  and  con- 
ductive to  the  general  good;  and,  therefore,  ought  not  to  be  arbitrarily 
restricted.' 

Says  Mr.  Justice  Story : 

Every  ship  sails  there  fin  the  open  sea]  with  the  unquestionable 
right  of  pursuing  her  own  lawful  business  without  interruption,  but 
whatever  may  be  that  business,  she  is  bound  to  pursue  it  in  such  a 
manner  as  not  to  violate  the  rights  oi  others,  The  general  maxim  in 
such  cases  is  slo  utere  tiio  lU  alicmim  non  Imlas.  (The  Mariauna  Flora, 
11  Wheaton's  Eepts.,  U.  S.  Sup.  Court,  p.  41.) 

of  maritimej  nrisdiction  was  rovorsed — from  mare  clamum,  to  marc  libcnim;  and  tbo  sov- 
ereignty allowed  by  iuternatiouul  law  over  a  i)ortiori  of  the  sea  is  in  fact  a  decayed 
and  poatracted  reiiiuantof  the  authority  once  allowed  to  particular  states  over  a  j;roat 
part  of  the  known  sea  and  ocean"  (p.  77). 

^Grotius  (Book  ii,  chap,  iii,  sec.  12,  p.  445)  remarks:  "It  is  certain  that  ho  who 
would  take  possession  of  the  sea  by  occupation  could  not  prevent  a  jieacefiil  and  in- 
nocent naviflalion,  since  such  a  transit  can  not  be  interdicted  even  on  laud,  though 
ordina:  ily  it  would  be  loss  necessary  and  more  danK»'rous." 

A.nu  Mr.  Twi8s(Int.  Law,  sees.  172,  185)  says:  "  Uut  this  is  not  the  case  with  the 
open  sea,  upon  whioli  all  persons  may  navigate  witiiout  the  least  prejudice  to  any 
nation  whatever,  and  without  exposing  any  nation  thereby  to  danger.  It  would 
thus  seem  i;hp.t  there  is  no  natural  warrant  for  any  nation  to  seek  to  take  possession 
of  the  open  sea,  or  even  to  restrict  the  innocent  use  of  it  by  ;itlicr  nations.  •  *  • 
The  right  of  fishing  in  the  open  sea  or  main  ocean  is  common  to  all  nations  on  the 
same  principle  which  sanctions  a  common  right  of  navigation,  viz^  thai  he  whofiahvn 
in  the  open  sea  docs  no  injury  to  any  one,  and  the  pioduota  of  the  tea  are,  in  thia  reapcvf, 
inexhansUble  and  eufflcient/or  all," 


"•Sine 
necessar 
without 

"A  na 
(langor 
IVom  tilt 
"■'ition. 

"The 
be  exerci 
caution  j 
]iiovido 
Int.  La\N| 

"The 

»    «    » 

and  para 
Hies.  Ill, 
"Inth 
tlio  rigiif 
vidua],  h 
wliatovei 
falling  si 


fl 


RIGHT   TO   PROTECT   INTERESTS   AND   INDUSTRY. 
Says  Cbaiicellor  Kent  {1  Commentaries,  27) : 


143 


Every  vessel  in  time  of  peace  has  a  right  to  consult  its  own  safety 
and  convenience,  and  to  pursue  its  own  course  and  business  without 
being  disturbed,  ichen  it  does  not  violate  the  rights  of  others. 

The  freedom  of  the  high  seas  for  the  inoffensive  navigation  of  all 
nations  is  tirnilv  established.  (Ainphlett,  J,,  Queen  v.  Kehn,  2  Law 
Eep.  Exch.  Div.',  p.  119.) 

Nor  was  the  right  of  8elf-<1efenee  on  the  sea  ever  yielded  up  or  relin- 
([uished  by  any  nation.  On  the  contrary,  in  every  successive  instance 
in  tlie  progress  of  civilization  '.ind  the  advance  of  commerce,  in  which 
restrictions  upon  the  freedom  of  the  sea  Avere  found  necessary  to  tlie 
protection  of  any  material  interest  or  right,  general  or  special,  such 
restrictions  were  at  once  asserted,  were  recognized  by  general  assent, 
and  became  incorporated  into  the  growth  of  that  system  of  rules  and 
usages  known  as  international  law.  Some  of  them  will  be  more  ])ar- 
ticiilarly  adverted  to  hereafter.  The  safety  of  states  and  the  protection 
of  their  commercial  interests  were  not  sacrificed  to  tlie  idea  of  the 
freedom  of  the  sea.  That  freedom  was  conceded  foi  ue  purposes  of 
such  protection,  and  as  aftbrding  its  best  security. 

There  arc  no  arbitrary  restrictions  iniposed  in  modern  times  i  non 
the  freedom  of  the  sea.  Neitlicr  are  there  any  arbitrary  rights  there 
There,  as  elsewhere,  liberty  has  two  conditions;  submission  to  just 
principles  of  law,  and  due  regard  for  the  rights  of  others.  And  these 
conditions  are  enforced  by  the  injured  party,  because  they  can  be  en- 
forced in  no  other  wJiy.' 

■  "Since,  tlien,  a  nation  is  obliged  to  preserve  itself,  it  has  u  right  to  evcrytliing 
neiessary  for  iba  prostrvation,  for  the  law  of  n?tiire  gives  us  a  right  to  everything 
without  wlucli  wo  can  not  fulfill  our  obligations. 

"A  nation  or  Htato  has  a  right  to  everything  that  can  help  to  ward  off  imniineni 
danger  and  to  keep  at  a  distance  whatever  ia  capable  of  causing  its  ruin,  and  that 
from  the  very  same  reasons  that  establish  its  right  to  things  necessary  to  its  preser- 
vation."    (Vattel,  sees.  18, 19.) 

"The  right  of  self-defense  is,  accordingly,  a  prim.ary  right  of  nations,  and  it  may 
1)0  exercised,  cither  by  way  of  resistance  to  an  inuucdiato  assault  or  by  way  of  pro- 
cautiou  against  threatened  aggression.  The  iudefeasiblo  right  of  every  nation  to 
lirovido  for  its  own  defense  is  classed  by  Vattel  among  its  perfect  rights."  (Twiss, 
lut.  Law,  part  I,  sec.  12.) 

"The  right  of  self-preservation  is  the  first  law  of  nations,  as  it  is  of  individuals." 
»  »  *  "j.^'or  international  law  considers  the  right  of  self-preservation  as  i)rior 
and  paramount  to  that  of  territorial  inviolability."  (riiillimore,  Int.  Law,  chap.  10, 
HICH.  Ill,  114.) 

"In  the  last  resort  almost  the  whole  of  the  dntics  of  states  are  subordinated  to 
the  right  of  self-protection.  Where  law  affords  inadecinate  protection  to  the  iudi- 
viilual,  ho  must  bo  permitted,  if  liis  existence  is  in  fpiestion,  to  protect  himself  by 
whatever  means  may  bo  necessary.  •  *  «  There  are,  however,  circumstances 
fulling  short  of  occasions  npon  which  existence  is  immediately  in  question,  in  which, 


mi 


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If 


'Ml. 

if; 


SB 


144 


ARGUMENT   OF  THE    UNITED    STATES. 


■  I 


The  right  of  self  defense  by  a  nation  upon  the  sea,  and  the  right  of 
municipal  jurisdiction  over  a  limited  part  of  the  sea  adjactnt  to  the 
(ioast,  are  not  to  be  confounded,  for  the  tMO  are  totally  distinct.  The 
littoral  jurisdiction,  indeed,  is  only  a  branch  of  the  general  right  of 
self-defense,  accoided  by  usiige  and  common  consent:  first,  because  it 
is  always  necessary  for  self-protection,  and  next,  because  it  is  usually 
sufilcient  for  it.  Upon  no  other  ground  was  it  ever  attempted  to  be 
sustained.  That  jurisdiction  must  be  limited  by  an  ascertained  or 
ascertainable  line,  is  its  necessary  condition.  That  the  right  of  self- 
defense  :8  subject  to  no  territorial  line,  is  equally  plain.  All  rights 
of  self  defense  are  the  result  of  necessity.  They  are  co-extensive  with 
the  ne(!essity,  that  gives  rise  to  them,  and  can  be  restricted  by  no 
other  boundary.  As  remarked  by  Chief  Justice  Marshall,  "All  that  is 
necessary  to  this  object  is  lawful,  all  that  transcends  it  is  unlawful." 

Precisely  what  is  the  limit  of  jurisdiction  upon  the  littoral  sea,  and 
precisely  what  are  the  nature  and  extent  of  the  jurisdiction  that  can  bo 
asserted  within  it,  whether  it  is  absolute  or  qualified,  territorial  or 
extraterritorial,  are  questions  that  have  been  the  subject  of  grave  dif- 
ference of  opinion  among  jurists.  Nor  have  they  ever  been  entirely 
settled.  They  will  be  found  to  be  discussed  with  a  fullness  of  learning, 
a  depth  of  research,  and  a  masterly  power  of  reasoning,  to  which  noth- 
ing can  be  added,  in  the  opinions  of  the  English  judges  in  the  important 
and  leading  case  of  The  Queen  v.  Kehn  (2  Law  Rep.  Bxch.  Div.,  187(i-'77, 
pp.  63  to  339).  These  learned  and  eminent  judges  were  not  fortunate 
enough  to  agree  upon  all  the  questions  involved,  and  every  view  that 
oau  be  taken  of  them,  and  every  consideration  that  is  pertinent,  are  ex- 
haustively presented  in  their  opinions. 

Upon  these  vexed  questions  it  is  not  at  all  necessary  to  enter  in  the 
present  cdse,  for  they  liave  little  to  do  with  it.    Whether  the  conclu- 


tbrongli  ft  sort  of  extension  of  the  idea  of  self-preservation  to  include  self-protection 
against  serious  hurts,  states  are  allowed  to  disregard  certain  of  the  ordiuiiry  rules 
of  law,  i.i  the  same  n)tvuuer  as  if  their  existence  were  involved."  (Hall,  Int.  Law, 
chap.  7,  sec.  83.) 

"If  a  nation  is  obliged  to  preserve  itself,  it  is  no  less  obliged  carefully  to  preserve 
all  its  members.  The  nation  owes  this  to  itself,  since  the  loss  even  of  <uie  of  its 
members  weakens  it  and  is  injurious  to  its  preservation.  It  owes  this  also  to  tho 
members  in  particular,  in  consequence  of  the  very  act  of  association ;  for  those  who 
compose  a  nation  »ve  united  for  their  defense  and  common  advantage,  and  none  can 
justly  be  deprived  of  this  union  and  of  the  advantages  he  expects  to  derive  from  it, 
while  ho,  on  his  side,  fulfills  the  conditions.  The  body  of  a  nation  can  not,  then, 
abandon  a  province,  a  town,  or  even  a  single  individual  who  is  a  i)art  of  it,  unless 
compelled  to  it  by  necessity  or  indiHi)ousably  obliged  to  it  by  the  strongest  reasons 
founded  on  the  public  safety."    (Vattel,  sec.  17.) 


RIGHT   TO   PROTECT   INTERESTS   AND   INDUSTRY. 


145 


flions  of  oue  or  the  other  of  these  conflicting  opinions  are  to  be  ac- 
cepted, is  immaterial  here.  All  authorities  agree  that  the  sole  reason 
upoh  which  a  certain  right  of  jurisdiction  upon  the  sea,  and  within  a 
limit  that  is  variously  stated,  has  been  conceded  to  maritime  nations, 
is  found  in  tlie  necessities  of  self-defense.  This  part  of  the  domuiion 
over  the  sea,  whether  it  be  greater  or  less,  has  never  been  surrendered. 
It  is  a  remnant  of  the  former  more  extended  dominion,  retained  for  the 
same  reason  for  which  that  was  asserted.  Lord  Chief  Justice  Cock- 
burn,  in  his  opinion  in  the  case  just  cited,  reviews  the  history  of  this 
subject,  quoting  the  language  of  every  previous  writer  of  repute,  and 
referring  to  every  judicial  decision  respecting  it  which  then  existed. 
He  points  out  very  clearly  the  different  views  that  have  prevailed  and 
which  then  prevailed  as  to  the  nature  of  the  jurisdiction,  and  as  to  the 
distance  over  which  it  could  be  extended.  This  limit  has  been  vari- 
ously asserted  by  writers  of  distinction  and  authority,  at  two  days' 
sail,  one  hundred  miles,  sixty  miles,  the  horizon  line,  as  far  as  can  be 
seen  from  the  shore,  as  far  as  bottom  can  be  found  with  the  dead  line, 
tlie  range  of  a  cannon  shot,  two  leagues,  one  league,  or  so  far  as  the 
Government  might  think  necessary.' 

On  the  other  point,  tlie  character  o'f  the  jurisdiction,  it  may  be 
assumed  that  by  the  controlling  opinion  of  the  present  time,  and  by 

'The  lord  chief  justice  observes:  "From  the  review  of  these  authorities  we 
arrive  at  the  following  results:  There  can  be  no  doubt  that  the  suggestiou  of  liyn- 
kerslioek  that  the  sea  surrounding  the  coiust  to  the  extort  of  cannon  range  should  be 
treated  as  belonging  to  the  state  owning  the  coast,  lias,  with  but  very  few  excep- 
tions, been  accepted  and  adopted  by  the  publicists  who  have  followed  him  during 
the  last  two  centuries.  Hut  it  is  equally  clear  in  the  practical  application  of  the 
rule  in  the  respect  of  the  particular  of  clistance,  as  also  in  the  still  more  essential 
pirticular  of  the  character  of  sovfreignty  and  dominion  to  ho  exercised,  great  dif- 
ferences of  ;;j»iuionhave  prevailed  and  still  continue  to  exist.  As  regards  distance, 
wliile  the  majority  of  authori  have  adhered  to  the  thrco-nule  zone,  others,  like  M. 
Ortolan  and  Mr.  Halleok,  ap'dying  with  greater  consistency  the  principle  on  which 
the  whole  doctrine  rests,  innist  on  extei.ding  the  distance  to  the  modern  range  of 
(■•miiou — in  other  words,  doubling  it.  TJiis  diflerciico  of  opinion  maybe  of  little 
practical  importance  in  the  present  circ.rastancos,  in'iimuch  as  the  place  at  which 
the  offense  occurred  was  within  the  lessor  distance;  but  it  is  nevertheless  not  imma- 
terial a«  showing  how  unsettled  this  doctrine  stiii  is.  The  question  of  soA'ereignty, 
on  the  other  hand,  is  all  imiiortant,  and  here  we  have  every  shade  of  opinion. 
*  *  *  Looking  at  this  we  may  properly  ask  t^ose  who  contend  for  the  ap])lication 
ct'  the  existing  law  to  the  littoral  sea,  independently  of  legislation,  to  tell  us  the 
extent  to  which  we  are  to  go  in  applying  it.  Are  we  to  linut  it  to  three  miles,  or  to 
extend  it  to  sixt  Are  we  to  treat  the  wliole  body  of  the  criminal  law  as  applicable 
to  il,  or  only  so  much  as  relates  to  police  ami  safety!  Or  are  we  to  limit  it,  us  one 
1)1'  these  authors  proposes,  to  the  protection  of  lishcries  and  customs,  the  exacting 
or  liarbor  and  like  dues,  and  the  iirotoctiou  of  our  coasts  in  tune  of  wai'f  Which 
Dl'  these  writers  are  we  to  follow!" 


i 


yj 


N, 


14740- 


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mt 


146 


ARGUMENT  OF   THE   UNITKD   STATES. 


'  nl;! 


'  !  .;, 


the  usage  of  nations,  it  is  not  regarded  as  so  far  absolute  that  a  nation 
may  exclude  altogether  f.om  within  the  range  of  cannon  shot  the 
ships  of  another  country,  innocently  navigating,  and  violating  no 
reasonable  regulation  of  the  municipal  law.  But  the  power  which  may 
be  exerted  within  that  limit  is  only  coextensive  with  the  just  require- 
ments of  the  self  protection  for  which  it  exists,  although  undoubtedly 
the  nation  exercising  the  jurisdiction  must  be  allowed,  so  long  as  it  acts 
in  good  faith,  to  be  its  own  judge  as  to  the  regulations  proper  to  bo 
prescribed,  and  the  manner  of  their  enforcement.^ 

This  somewhat  indefinite  area  of  a  greater  or  less  jurisdiction  over 
the  marginal  sea,  which  has  thus  come  to  be  recognized  and  conceded, 
though  accorded  for  the  purposes  of  national  self- protection,  is  by  no 
means  its  boundary.  It  illustrates  the  riglit  of  which  it  is  an  example, 
but  does  not  exhaust  it.  It  is  but  one  application  of  the  principle  out 
of  many.  The  necessity  which  gave  rise  to  it  justifies  likewise  the 
larger  power,  and  fu.  ther  means  of  defence,  which  may  from  time  to 
time  be  required.  No  nation,  in  whatever  statute  or  treaty  it  may 
have  assented  to  the  three-mile  or  cannon-shot  limit  of  municipal  juris- 
diction, has  ever  agreed  to  surrender  its  riglit  of  self  defense  outside 
of  that  boundary,  or  to  substitute  for  that  right  the  contracted  and 
qualified  power  which  is  only  one  of  the  results  of  it,  and  which  must 


i 


'Says  Sir  Robert  Philliinore,  in  his  opinion  in  Queen  v.  Kehn:  "The  sound  con- 
clusions which  result  from  the  investigation  of  the  authorities  which  have  been  re- 
ferred to  appear  to  me  to  be  these:  The  concensus  of  civilized  independent  states 
has  recognized  a  maritime  extension  of  frontier  to  the  distance  of  three  miles  from 
low  water  mark,  because  such  a  frontier  or  belt  of  water  is  necessary  for  the  defonco 
and  security  of  the  adjacent  state. 

"  It  is  for  the  attainment  of  these  particular  objects  that  a  dominion  has  been 
granted  over  these  portions  of  the  high  seas. 

"This  proposition  is  materially  different  from  the  proposition  contended  for,  via: 
that  it  is  competent  to  a  state  to  exercise  within  these  waters  the  same  rights  of 
j:  '•'sdictiou  and  property  which  appertain  to  it  in  respect  to  its  lands  ind  its  ports. 
Thbre  is  one  obvious  test  by  which  the  two  sovereignties  may  be  distinguished. 

"According  to  modern  international  law  it  is  certainly  a  riglit  incident  to  each 
state  to  refuse  a  passage  to  foreigners  over  its  territory  by  land,  whether  in  time  (if 
peace  or  war.  But  it  does  not  appear  to  have  the  same  right  with  respect  to  pre- 
venting the  passage  of  foreign  ships  over  t^is  portion  of  the  high  seas. 

"In  the  former  case  there  is  no  jus  transitua;  in  the  latter  case  there  is. 

"The  reason  of  the  thing  is  tbat  the  defence  and  security  of  the  state  does  not  re- 
quire or  warrant  the  exclusion  of  peaceable  frreign  vessels  from  passing  over  these 
waters,  and  the  custom  and  usap"  vf  aai.ions  has  not  sanctioned  it." 

Lord  Cockbum,  in  Queen  v.  Kehn,  speakin  j;  of  the  claim  that  a  nation  has  the  riglit 
of  excluding  foreign  ships  from  innocent  po  sage  within  the  three-mile  limit,  says 
it  is  a  "doctrine  too  monftrous  to  be  admitted."  And  again,  "No  nation  has  nriD- 
gated  to  itself  the  right  of  excluding  fpieign  vessels  from  tb0  use  of  the  VJttci'iiiil 
Ut^oiral  waters  for  tbo  purpose  of  uavi;,atlon." 


EIGHT   TO    PROTECT   INTERESTS   AND   INDUSTRY. 


147 


often  prove  inadequate  or  inapplicable.  On  the  contrary,  as  will  be 
seen  hereafter,  many  nations  have  been  compelled  to  assert,  and  have 
successfully  asserted,  much  wider  and  larger  jjowers  in  the  defence  of 
their  manifold  interests. 

It  is  under  the  operat'on  of  the  same  principle  on  which  jurisdiction 
is  awarded  to  nations  over  the  sea  witliin  the  t  mile  or  cannon-shot 
Innit,  that  a  similar  jurisdiction  is  allowed  to  be  exercised  not  only 
over  navigable  rivers,  bays,  and  estuaries,  which  may  be  fsiirly  re- 
garded as  lying  within  territorial  boundaries,  but  over  those  larger 
portions  of  the  ocean  comprised  within  lines  drawn  between  distant 
promontories  or  headlands,  and  often  extending  much  more  than  three 
miles  from  the  nearest  coast.  Such  waters  were  formerly  known  in 
English  law  as  "the  King's  Chambers."' 

Chancellor  Kent  remarks  on  this  subject  (1  Com.,  pp.  30,  31) : 

Considering  the  great  extent  of  the  line  of  the  American  coasts,  we 
Lave  a  right  to  claim  for  fiscal  and  deleiisive  regulations  a  liberal  ex- 
tension of  maritime  jurisdiction;  and  it  would  not  be  unreasonable,  as 
I  ai)prehend,  to  assume,  for  don'  isticpurposes  connected  with  our  satetj 
and  welfare,  the  control  of  the  waters  on  our  coasts,  though  included 
within  lines  stretching  from  quite  distant  headlands,  as  for  instance, 
from  Cape  Ann  to  Cape  Cod,  and  from  Nantucket  to  Montauk  Point, 
and  from  that  point  to  the  capes  of  the  Delaware,  and  from  the  south 
cape  of  Florida  to  the  Mississippi. 

The  principle  on  which  this  exercise  of  maritime  jurisdiction  reposes 
is  only  that  of  self-defense.  As  Chancellor  Kent  further  observes  (1 
Com.,  p.  26): 

Navigable  rivers  wL'*ch  flow  through  a  territory,  and  the  seacoast  ad- 
joining it  *  *  *  belong  to  the  sovereign  of  the  ailjoining  ter- 
ritory, as  being  necessary  to  the  safety  of  the  nation  and  to  the  undis- 
turbed use  of  the  neighboring  shores. 

That  the  right  of  self-defence  is  not  limited  by  any  physical  boundary, 
but  may  be  exerted  wherever  and  whenever  necessity  requires  it,  upon 
the  high  sea  or  even  upon  foreign  territory,  is  not  only  the  inevitable 
result  of  the  application  of  just  principles,  but  is  established  by  the 
highest  authorities  in  the  law  of  nations. 


'Sir  Henry  Maine  says  (Lectures  on  lutemational  Law  p.  80) :  "Another  survival 
olliirger  pretensions  is  the  English  claim  to  exclusive  authority  over  vrhat  were 
pallt'il  the  King's  Chambers.  These  are  portions  of  the  sea  cut  off  by  lines  drawn 
from  one  promontory  of  our  coast  to  another,  as  from  Lands  End  to  Milford  Haven. 
The  claim  has  been  followed  in  America,  and  a  jurisdiction  of  the  like  kind  is  a&- 
Berted  by  the  United  States  over  Doluwaie  Uay  aud  other  eatuarica  which  eutcr  intQ 
lioitious  of  their  tenitory." 


148 


ARGUMENT   OF  THE    UNITED   STATES. 


I 

w 

■  t 


Vattel  says  upon  this  subject  (p.  128,  sec.  289): 

Tt  is  not  easy  to  determine  to  what  distance  the  nation  may  extend  its 
rights  over  the  sea  b>  wliich  it  is  surrounded.  •  *  •  Each  state  may 
on  this  head  make  what  regulation  it  pleases  so  far  as  respects  the  trans- 
actions of  the  citizens  with  ea(rh  other,  or  their  concerns  with  the  sov- 
ereign; but,  between  nation  and  nation,  all  that  can  reasonably  be  said 
is  that  in  general  the  dominion  of  the  state  over  the  neighboring  seas 
extends  as  far  as  her  safety  renders  it  necessary,  and  her  power  is  able 
to  assert  it. 

Chancellor  Kent  observes  (1  Com.,  p.  29): 

It  is  difficult  to  draw  any  precise  or  determinate  conclusion  amidst 
the  variety  of  opinions  as  to  the  distance  to  which  a  state  may  law- 
fully extend  its  exclusive  dominion  over  the  sea  adjoining  its  territories 
and  beyond  those  portions  of  the  sea  which  are  embraced  by  harbors, 
gulfs,  bays,  and  estuaries,  and  over  which  its  jurisdiction  unquestion- 
ably extends.  All  that  can  reasonably  be  asserted  is,  that  the  domin- 
ion of  the  sovereign  of  the  shore  over  the  contiguous  sea  extends  as 
far  as  is  requisite  for  his  safety  and  lor  some  lawful  end. 

And  states  may  exercise  a  more  qualified  jurisdiction  over  the  seas 
near  their  coast  for  more  than  the  three  (or  five)  mile  limit  for  fiscal  and 
defensive  purposes.  Both  Clreat  Britain  and  the  United  States  have 
prohibited  the  transshipment  within  four  leagues  of  their  coast  of  for- 
eign goods  without  payment  of  duties.^    (Kent  Com.  I,  p.  31.) 

In  the  case  of  Church  v.  Hubbart  (2  Cranch,  Kep.  287),  the  Supreme 
Court  of  the  United  States  unanimously  held  that  "the  right  of  a 
nation  to  seize  vessels  attempting  an  illicit  ti'ade  is  notconfined  to  their 
harbors  or  to  the  range  of  their  batteries."  It  appeared  in  that  case 
that  Portugal  had  prohibited  trade  with  its  colonies  by  foreigners.    A 

'  Mr.  Twiss  says  (vol.  I,  pp.  241,  242,  Int.  Law) :  "  Further,  if  the  free  and  common 
use  of  a  thing  which  is  incapable  of  being  appropriated  were  likely  to  be  prejudicial 
or  dangerous  to  a  nation,  the  care  of  its  own  safety  would  authorize  it  to  reduce 
that  tLl.ig  uuclcr  its  exclusive  empire  if  possible,  in  order  to  restrict  the  use  of  it  on 
thepart  of  others,  by  such  precautions  as  prudence  might  dictate." 

Wildman,  on  the  sauie  point,  says  (Int.  Law,  vol.  i,  p.  70):  "The  sea  within  gun- 
shot of  the  shore  is  occupied  by  the  occupation  of  the  coast.  Beyond  this  limit  mar- 
itime states  have  claimed  a  right  of  visitation  and  inquiry  within  those  parts  of  the 
ocean  adjoining  to  their  shores,  which  the  common  courtesy  of  nations  had  for  their 
common  convenience  allowed  to  bo  considered  as  parts  of  their  dominions  for  vari- 
ous domestic  purposes,  arii  particularly  for  fiscal  and  defensive  regulations  more  im- 
mediately affecting  thei ;  safety  and  welfare." 

Creasy  (Int.  Law,  sec.  245)  remarks:  "States  may  exercise  a  qualified  jurisdic- 
tion over  the  seas  near  their  coasts  for  more  than  the  three  (or  five)  miles  limit,  for 
fiscal  and  defensive  purposes,  that  is,  for  the  purpose  of  enforcement  of  their 
revenue  laws,  and  in  order  to  prevent  foreign  armed  vessels  from  hovering  on  thiif 
coasts  in  a  menacing  and  annoying  manner." 

And  Halleck  says  (Int.  Law,  chap.  6,  sec.  13)  the  three-mile  belt  is  the  subject 
of  territorial  jurisdiction.  "Even  beyond  this  limit  states  may  exercise  a  qualiiied 
Juiisdistion  for  fiscal  and  defensive  purposes." 


foreigi 

the  hi 

And  it 

liver  in 

the  dif 

and  its 

Lord 

Kehn, 

opinion 

HitlK 

in  this  1 
rights  a 
lishery  ] 
In  the  t 
mile  dis 
right  of 
its  terril 
Jaws,  1 
case  of  ( 

The  o] 

Cockb'ir 
a  umnici] 
tlie  legis] 
tion  in 
tion  else^ 
iiecessarj 
wlierever 
way,  thej 
defensive 
them,  prt 
and  thatl 
pp.  169-l| 

Such 
ward  OasI 
referred 

'For  fun] 

•  After  q  J 
proceeds  td 
lor  the  violl 
to  the  oustJ 
poses  penal 
wjiich  are  ;if 
to  all  the  dJ 


RIGHT   TO  PROTECT   INTERESTS  AND   INDUSTRY. 


149 


ncl  its 
emay 
traus- 
e  sov- 
e  said 
g  seas 
Ls  able 


foreign  vessel  found  to  liave  been  intending  sncli  trade  was  seized  on 
tlie  bigh  seas,  carried  into  a  Portuguese  port,  and  there  condemned. 
And  it  was  beld  tbat  tbe  seizure  was  legal,  Chief  Justice  Marshall  de- 
livering the  opinion  of  the  court.  He  points  out  with  great  clearness 
the  did erence  between  the  right  of  a  nation  to  exercise  jurisdiction, 
and  its  right  of  self  defense.* 

Lord  Chief  Justice  Cockburn,  in  his  opinion  in  the  case  of  Qneen  v. 
Kehn,  supra,  cites  this  decision  with  approval,  and  quotes  from  the 
opinion.    He  says  (2  Law  Eep.,  214): 

Hitlierto  legislation,  so  far  as  relates  to  foreigners  in  foreign  ships 
in  this  part  of  the  sea,  has  been  confined  to  the  maintenance  of  neutral 
rights  and  obligations,  the  prevention  of  breaches  of  the  revenue  and 
lisliery  laws,  and,  under  particular  circumstances,  to  cases  of  collision. 
In  the  two  first,  the  legislation  is  altogether  irrespective  of  the  three- 
mile  distance,"  being  founded  on  a  totally  difl:erent  principle,  viz,  the 
right  of  the  state  to  take  all  necessary  measures  for  the  pi'otection  of 
its  territory  and  rights,  and  the  prevention  of  any  breach  of  its  revenue 
laws.  This  principle  was  well  explained  by  Marshall,  C.  J.,  in  the 
case  of  Church  v.  Hubbart.'* 

The  opinion  of  Chief  Justice  Marshall  and  the  language  of  Lord 
Cockb'irn,  above  cited,  very  clearly  illustrate  the  distinction  between 
a  nmnicipal  statute  and  adefensiveregulation.  The  one  emanates  from 
the  legislative  power,  and  has  effect  only  within  the  territorial  jurisdic- 
tion in  which  it  is  enacted,  and  upon  those  subject  to  that  jurisdic- 
tion elsewhere.  The  other  is  the  exertion  of  executive  authority  when 
ne(!essary  for  the  protection  of  the  national  interest,  and  may  take  place 
wherever  that  necessity  exists.  Statutes  intended  for  such  protection 
may,  thereft)re,  have  eifect  as  statutes  within  the  jurisdiction,  and  as 
defensive  regulations  without  it,  if  the  Government  choose  so  to  enforce 
tiiem,  provided  only  that  such  enforcement  is  necessary  for  just  defense, 
and  that  the  regulations  are  reasonable  for  that  purpose.  {Supra.f 
pp.  169-171). 

Such  was  the  view  of  the  United  States  Supreioe  Court  in  the  Say- 
ward  Case,  in  respect  to  the  operation  of  the  acts  of  Congress  before 
referred  to,  for  the  protection  of  the  seal  in  Bering  Sea.      In  that  case 

'For  full  quotiitious  from  this  opinion,  see  Appendix  to  this  argument,  infra,  p.  181. 

-  After  qnotiug  at  large  from  Chief  Justice  Marshall's  opinion,  Lord  Cockburn 
proceeds  to  say;  "To  this  class  of  enactments  belong  the  acts  imposing  penalties 
lor  the  A'iolation  of  neutrality  and  tlio  so-called  *  hovering  acts '  and  acts  relating 
to  the  customs.  Thus,  the  foreign  enlistniont  act  (33  aud  34  Vic.  C.  90)  which  im- 
poses penalties  for  various  acts  done  in  violation  of  neutral  obligations,  some  of 
viiich  are  applicable  to  foreigners  as  well  as  to  British  subjects,  is  extended  in  S.  2 
to  all  the  domiuioua  of  Her  Majesty,  'including  the  a^jacoat  territorial  waters.'" 


160 


ARGUMENT   OF   THE   UNITED    STATES. 


i 


\ 


n 


a  Canadian  vessel  liad  been  captnred  on  the  high  sea  by  a  United 
States  cruiser,  and  condemned  by  decree  of  the  United  States  District 
court,  for  violation  of  the  regulations  prescribed  in  those  acta;  and 
it  was  claimed  by  the  owners  that  the  capture  was  unjustifiable,  as 
being  an  attempt  to  give  eftect  to  a  municipal  statute  outside  the 
municipal  jurisdiction.  The  case  was  dismissed  because  it  was  not 
properly  before  the  court.  But  in  the  opinion  it  if*  intimated  that  it' 
it  had  been  necessary  to  decide  the  question  the  capture  would  Iiave 
been  regarded  as  an  executive  act  in  defense  of  national  interests,  and 
not  as  the  enforcement  of  a  statute  beyond  the  limits  of  its  effect.  (Case 
of  the  Sayicard,  U.  S.  Sup.  Ct.  Kep.,  Book  30,  U.  S.  Led.,  p.  179. 

As  such  defensive  regulations,  if  the  United  States  Government 
thinks  proper  so  to  enforce  them  beyond  the  territorial  line,  the  pro- 
visions of  those  acts  of  Congress  fulfill  the  canditions  of  being  both 
necessary  and  reasonable.  They  interfere  in  no  respect  with  the  free- 
dom of  the  sea,  except  for  the  protection  of  the  seal.  And  for  the^iur- 
poses  of  that  protection  they  are  not  only  such  as  the  Government 
prescribes  as  against  its  own  subjects,  but  are  clearly  shown  by  the 
evidence  to  be  necessary  to  be  so  enforced,  in  order  to  prevent  the  ex- 
termination of  the  seals  and  its  consequences  to  the  United  States. 

The  decision  in  Church  v.  Hubbart  is  cited  as  stating  the  law,  by 
Chancellor  Kent  (1  Com.,  31) ;  and  also  by  Mr.  Wharton  (Dig.  Int.  Law, 
p.  113)  and  by  Wlieaton  (Int.  Law,  6th  ed.,  p.  235).  It  was  followed 
in  the  same  court  by  the  case  of  Hudson  v.  Guestier  (6  Cranch  Kep., 
281).  in  which  it  was  held  that  the  jurisdiction  of  the  French  court  as 
to  seizures  is  not  confined  to  seizures  made  within  two  leagues  of  the 
coast.  And  that  a  seizure  beyond  the  limits  of  the  territorial  juris- 
diction for  breach  of  a  municii)al  regulation  is  warranted  by  the  law  of 
nations. 

This  decision  overruled  a  previous  case  (Eose  v.  Dimely,  4  Cranch 
Eep.,  287)  made,  though  upon  very  different  facts,  by  a  divided  court. 
The  dissenting  opinion  of  Johnson,  J.,  in  that  case,  which  by  the  sub 
sequent  decision  became  the  law,  is  worthy  of  perusal.* 

Mr.  Dana,  who  published  an  edition  of  Wheaton,  with  notes  which 
80  far  as  they  were  his  own  did  not  add  to  its  value,  is  of  opinion  that 
in  the  decision  in  Clmrch  v.  Hubbart,  Chief  Justice  Marshall  and  his 
eminent  associates  were  mistaken.  And  this  remark  of  his  is  cited 
in  the  British  Case.    Mr.  Dana  has  no  such  repute  as  makes  him  an 

'  For  opinion  see  Appendix,  infra  p.  182. 


Judge 
rci'erret 
Mr.  Dai 
there  d( 
diction 
tier,  in 
coiicun 

The 
Court), 
Story, 


'In  th( 
Court  Re 
"Withoi 
Ovor  thc! 
•it'jurisd 
tioHs  exp 

"Such 
tlie  rcgiil 

"Tlio^ 


RiaUT   TO   PROTECT   INTKHESTS   AND   iNDUSTllY. 


151 


authority,  especially  when  he  undertakes  to  overrule  the  greatest  of 
American  judges,  and  the  repeated  decisions  of  the  Supreme  Court  of 
the  United  States.  No  other  writer  or  judge,  so  far  as  we  are  aware, 
has  ever  shared  his  opinion.  And,  as  has  been  seen,  the  decision  of 
Chief  Juistice  Marshall  has  received  the  approval  of  very  great  lawyers. 

In  the  comments  in  his  note  upon  these  cases,  Mr.  Dana  docs  not 
correctly  state  them.  The  decision  in  Church  v.  Iliibbart  was  upon 
tlie  unanimous  opinion  of  the  court,  and  has  never  been  questioned 
except  by  him.  The  subsequent  case  of  Rose  v.  Himely  decided  that 
the  seizure  of  a  vessel  without  the  territorial  domain  of  the  sovereign 
under  cover  of  whose  authority  it  is  made  will  not  give  jurisdiction  to 
condemn  the  vessel,  if  it  is  never  brought  within  the  dominions  of 
that  sovereign.  It  would  seem  from  some  of  the  language  of  Chief 
Justice  Marshall,  that  he  may  have  been  of  opinion  that  the  seizure 
itself  was  unwarranted,  irrespective  of  the  fact  that  tlie  vessel  never 
was  brought  in,  though  this  is  by  no  means  clear.  Judges  Livingston, 
Gushing,  and  Chase  concurred  in  the  decision,  on  the  sole  ground  that 
tlie  captured  ship  was  not  brought  into  a  port  of  the  country  to  which 
the  capturing  vessel  belonged;  and  declined  to  express  an  opinion  as 
to  the  validity  of  the  seizure  upon  the  high  sea,  for  breach  of  a  munici- 
pal regulation,  provided  the  vessel  had  been  so  brought  in.  While 
Judge  Johnson  dissented  altogether,  holding  in  the  opinion  above 
referred  to,  that  the  seizure  was  valid,  although  never  brought  in. 
Mr.  Dana  mistakes  the  case  of  Rose  v.  E  jly  in  saying  that  it  was 
there  decided  that  a  seizure  of  a  vessel  ov  .  de  of  the  territorial  juris- 
diction is  unwarranted.  And  he  mistakes  the  case  of  Hudson  v.  Gues- 
tier,  in  which  the  contrary  is  distinctly  held.  Chief  Justice  Marshall 
concurring. 

The  cases  of  the  Marianna  Flora  (11  Wheaton  Rep.  U.  S.  Sup. 
Court),  above  cited,  in  which  the  opinion  was  delivered  by  Mr.  Justice 
Story,  and  the  case  of  the  Schooner  Betsey  (Mason's  Rep.  354),  a  de- 
cision of  Judge  Story,  were  to  the  same  eftect.* 

'In  the  recent  case  (1890)  of  Manchester  v.  Massachusetts  (139  U.  S.  Supremo 
Court  Rep.,  240),  the  law  on  this  subject  was  thus  stated  by  Mr.  Choatc,  of  counsel: 
"Without  these  limits  were  the  'high  seas,'  the  common  property  of  all  nations. 
Over  these  England,  as  one  of  tlie  common  sovereigns  of  the  ocean,  had  certain  rights 
of  jurisdiction  and  dominion  derived  from  and  sanctioned  by  the  agreement  of  na- 
tions expressed  or  implied. 

"Such  jurisdiction  and  dominion  she  had  for  all  purposes  of  self-defense,  and  for 
the  regulation  of  coast  fisheries. 

"  The  exorcise  of  such  rights  over  adjacent  waters  would  not  necessarily  be  limited 


^■. 


!'» 


152 


ARGUMENT   OF   THE   UNITED   STATES. 


Tlie  OontinentaJ  publicists  are  in  full  coucurrouce  on  this  point  with 
English  and  American  authorities.' 

In  respect  to  the  exercise  of  the  right  of  self-defense,  not  merely 
upon  the  high  seas  but  in  the  territory  or  territorial  waters  of  a  foreign 
and  friendly  state,  authority  is  equally  strong.  Says  Mr.  Wharton  (1 
Dig.  of  Int.  Law.,  p.  50) : 

Intrusion  on  the  territory  or  territorial  waters  of  a  foreign  state  is 
excusable  wht'-n  necessary  for  self -protection  in  matters  of  vital  impor- 
tance, and  wlien  no  other  mode  of  relief  is  attainable. 

And  (pp.  221,  222): 

When  there  is  no  other  way  of  warding  olT  a  perilous  attack  u])on  a 
country,  the  sovereign  of  such  country  can  intervene  by  force  in  the 
territory  from  which  the  attack  is  threatened,  in  order  to  prevent  such 
attack. 

A  belligerent  may,  under  extreme  necessity,  enter  neutral  territory 
and  do  what  is  actually  necessary  for  protection. 
And  he  cites  the  case  of  Amelia  Island,  in  respect  to  which  he  SP.ys: 

Amelia  Islaiul,  at  the  mouth  of  St.  Mary's  River,  and  at  that  time  in 
Spanish  territory,  was  seizetl  in  1817  by  a  band  of  buccaneers,  under 
the  direction  of  an  adventurer  named  McGregor,  who,  in  the  name  of 
the  insurgent  colonies  of  Buenos-Ayres  and  Venezuela,  preyed  indis- 
criminately on  the  commerce  of  Spain  and  of  the  United  Stf^tes. 
The  Spanish  Government  not  being  able  or  willing  to  drive  them  olf, 
and  the  nuisance  being  one  which  required  immediate  action.  President 


1;  I 


: ,  J, 


I  ^l- 


^  i     '!, 


to  a  3-mile  belt,  but  wonld  undoubtedly  be  sanotioued  as  far  as  reasonaltly  nec- 
essary to  secure  tlie  privotinal  benolits  of  tlieir  posseawion.  If  self-di^ieuse  or  regula- 
tion of  fisheries  should  rtasouably  require  ivssumption  of  coutrol  to  a  greater  distance 
than  3  miles,  it  would  undoubtedly  be  acquiesced  in  by  other  n.'itious. 

"The  marine  leayue  distance  has  acquired  prominence  merely  because  of  its  adop- 
tion as  a  boundary  in  certain  agreements  and  treaties,  and  from  its  frequent  mention 
in  text-books,  but  has  never  been  established  in  law  as  a  fixed  boundary. 

"These  rights  belonged  to  England  as  a  member  of  the  family  of  nations,  and  did 
not  constitute  her  the  possessor  of  a  proprietary  title  in  any  part  of  the  high  seas 
nor  add  any  portion  of  these  waters  to  her  realm.  In  their  nature  they  were  rights 
of  dominion  and  sovereignty  rather  than  of  property." 

Mr.  Justice  Blatchford,  in  delivering  the  opinion  of  the  court,  says:  "We  think 
it  must  be  regarded  as  established  that,  as  between  nations,  the  minimum  limit  of 
the  territorial  jurisdiction  of  a  nation  over  tide-waters  is  a  marine  league  from  its 
coast;  that  bays  wholly  within  its  territory  not  exceeding  two  marine  leagues  in 
width  at  the  mouth,  are  within  this  limit;  and  that  included  in  this  territorial  juris- 
diction is  the  right  of  control  over  fisheries,  whether  the  fish  be  migratory,  free- 
swimminf  fish,  or  free-moving  flsli,  or  fish  attached  to  or  embedded  in  the  soil.  The 
open  sea  \'ithin  this  limit  is,  of  course,  subject  to  the  common  ri^^iit  of  navigation, 
and  all  governments,  ior  the  purpose  of  eelfprotection  in  time  of  war  or  for  the  pre- 
vention of  Qrands  on  its  revenue,  exercise  an  authority  beyond  tliis  I'mit." 

'For  citaiions  from  Azuni,  Plocquo,  La  Tour,  Calvo,  Uefl'ter,  Bluatschli,  and  Car- 
uazza-Amuri,  see  Appendix,  infra  pp.  183-186. 


RIGHT   TO   PROTECT   INTERESTS   AND   INDUSTRY. 


153 


Monroe  called  his  Cabinet  to;?ether  in  O.'tobor,  l.Si7,  and  directed  that 
a  veasel  of  war  sliould  proceed  to  the  island  and  expel  the  maranders, 
destroying  their  works  and  vessels. 

In  tlie  case  of  the  Caroline,  in  the  year  1838,  during  the  Canadian 
rebellion,  a  British  armed  force  pursued  that  vessel  into  an  American 
port  on  Lake  Erie,  ent  her  out  and  destroyed  her  by  lire,  killing  one  or 
mOiC  of  lier  crew.  This  otherwise  gross  violation  of  the  territory  of  a 
iriendly  nation  was  justified  by  the  British  Government  as  a  necessary 
measure  of  self  defense,  since  the  Caroline  had  been  engaged  in  carry- 
ing supplies  to  the  insurgents.  In  the  correspondence  that  ensued 
between  the  two  governments,  the  British  right  to  intrude  as  they  did 
upon  American  territory  was  conceded  by  Mr.  Webster,  the  American 
(Secretary  of  State,  provided  the  necessities  of  self-detV'iiso  required  it, 
and  Ui",  only  question  made  was  whether  the  necessity  for  its  exercise 
actiii  ly  existed.  In  the  end,  that  point  seems  to  have  been  given  up, 
and  no  reparation  or  apology  was  ever  made.  Though  it  is  certainly 
dillicult  to  see  how  any  greater  necessity  was  to  be  found  in  that  case 
than  may  always  be  said  to  exist  for  attacking  an  enemy's  ship,  the 
ease  presents  a  very  strong  illustration  of  the  application  of  an  un- 
doubted principle.  A  very  interesting  discussion  of  the  question  wil 
be  found  in  the  correspondence.' 

Phillimore  says  of  the  Carcline  case  (vol.  I,  p.  255,  sec.  ooxvi) : 

The  act  was  made  the  subject  of  complaint  on  the  ground  of  viola- 
tion of  territory  by  the  American  Government,  and  vindicated  by  Great 
Britain  on  the  ground  of  self-preservation ;  which,  if  her  version  of  the 
facts  were  correct,  was  a  sufficieut  answer  and  a  con\plete  vindication. 

Hall  (Int.  Law,  p.  267,  par.  34)  expresses  similar  views. 

In  1815,  under  orders  of  Mr.  Monroe,  measures  were  taken  for  the 
destruction  of  a  fort  held  by  outlaws  of  all  kinds  on  the  Appalachicola 
lliver,  then  within  Spanish  tc^'ritory,  from  which  parties  had  gone 
forth  to  pillage  within  the  United  States.  The  governor  of  Pensacola 
had  been  called  upon  to  repress  the  evil  and  punish  tlie  marauders,  but 
lie  refused ;  and  on  his  refusal  the  Spanish  territory  was  entered,  and 
the  fort  attacked  and  destroyed,  on  the  ground  of  necessity. 

A  similar  case  was  that  of  Grey  town.  It  was  a  port  on  the  Mosquito 
coast,  in  which  some  United  States  citizens  resided.  These  citizens, 
and  others  interested  with  them  in  business,  were  subjected  to  gross 
indignities  and  injuries  by  the  local  authorities,  who  were  British,  but 

'  For  correspoiidoiice  between  Mr.  Webster  and  Lord  AsLburton,  and  remarks  of 
Mr.  Calhcun  and  Loid  Campbell,  see  Appendix,  infra,  p.  186. 


■'^'\' 


H 
<'1, 


\\}m 


ti 


,!i 


164 


AUGUMBNT   OP   THE    UNITED    STATES. 


who  professed  to  act  from  the  iiuthority  of  the  kin;j^  or  chief  of  the 
Mosquito  Islauds.  The  parties  then  appealed  to  the  commander  of  the 
United  States  sloop  of  war  Cyane,  then  lying  near  the  port,  for  pro- 
tection. To  i)unish  the  authorities  for  their  action  he  bombarded  the 
town.  For  this  act  he  \vas  denounced  by  the  Britisli  residents,  who 
claimed  that  the  British  Government  had  a  j^rotectorate  over  that 
region.  His  action  was  sustained  by  the  Government  of  the  United 
States,  the  ground  being  the  necessity  of  punishing  in  this  way  the 
wrong  to  citizens  of  the  United  States,  and  preventing  its  continuance. 
(1  Wharton's  Dig.,  p.  229.) 

When  the  sovereign  of  a  territory  permits  it  to  be  made  the  base  of 
hostilities  by  outlaws  and  savages  against  a  country  Avith  wliich  such 
sovereign  is  at  peace,  the  government  of  the  latter  country  is  entitled, 
as  a  matter  of  necessity,  to  pursue  the  assailants  wherever  they  may 
be,  and  to  take  such  measures  as  are  necessary  to  put  an  euil  to  their 
aggressions.    {lb.,  p.  220.) 

An  incursion  into  the  territory  of  Mexico  for  the  purpose  of  dispers- 
ing a  band  of  Indian  marauders  is,  if  ueceasarj.  not  a  viulation  of  the 
law  of  nations.     {lb.,  p.  233.) ' 

In  all  these  cases  the  discussion  proceeded  uiwi  the  question  of  the 
existence  of  the  particular  necessity.  The  right  to  enter  upon  neutral 
territory,  if  necessity  really  required  it,  was  not  controverted  by  aaiy 
of  the  governments  concerned. 

A  still  more  striking  illustration  of  the-exarcise  of  the  national  right 
of  self-defense  upon  the  higli  seas,  at  the  (^xpense  of  innoiteiit  commerce, 
and  to  the  entire  subordination  of  i)rivar'i  rights,  which,  except  for  the 
consequences  to  national  iuterests,  would  have  beeu  unquestionable,  is 
found  in  the  British  Orders  in  Council  in  tiie  year  1809,  prohibiting 
neutral  commerce  of  every  kind  with  ports  wliich  the  Empertw  of 
France  had  declared  to  be  closed  against  British  trade.    The  efl'ect  of 


'  "Temporary  inviision  of  tlio  torrirnry  of  an  JKljoinins  country,  whou  necessary 
to  prevent  mid  check  crime,  '  rests  npon  principit^s  <>i  t  li  ■  law  of  nations  entirely  dis- 
tinct from  tliose  on  'wliich  war  is  juBtitied — npiiu  tlif  immutiiblc  principles  of  solf- 
defense — up(m  the  priucii)lcs  vrliicb  .infltify  decisive  measures  of  priMtautions  to  pre- 
vent irreparable  evil  to  our  own  or  to  a  neighborinjj  peoplo,'"  (Sir.  Forsyth,  8ec. 
of  State,  1  Wharton,  p.  230.) 

"The  first  duty  of  a  govevnineut  iK  to  protect  life  and  proptTTy.  This  is  a  para- 
mount obligation.  For  this  governments  are  instituted,  and  jr-n'crnmonts  nosloet- 
ing  or  faiiiuj;  to  perform  it  become  worse  than  I-     ■  *     *  The  United  States 

Government  can  not  allow  niMraudiiiK  bands  to  '  ■'  ''  thomselvHN  upon  its  Itorders 
with  liberty  to  invade  and  ])lundBr  united  States  territory  with  impunity,  ar-'thon, 
when  pursued,  to  take  refuse  acrcM"  the  Kio  riramle  nnder  the  protection  of  the  ])lea 
of  the  inte^rrity  of  the  soil  of  the  Aluiicuu  Kepuhlic.''  (Mr.  Evaris,  Sec.  of  iJtaie,  1 
Wharton,  p.  232.) 


RrC^HT    TO    PROTECT    INTEuiiSTS    AND    INDUSTRY. 


155 


theKe  orderK  wuh  to  jivrest  upon  the  sea  the  liiwliit  tirade  of  neutrals,  not 
Avitli  blockaded  ports,  nor  even  belligerent  ports  nut  blockaded,  but  with 
neutral  ports.  Yet  the  validity  of  these  orders  upon  the  principles  of 
international  lavr.  severe  as  tlieir  consequences  were,  was  affirmed  by 
the  great  judicial  authority  of  Lord  Stowell,  then  Sir  William  Scott, 
in  several  cases  of  capture  that,  cjuec  betbre  him  in  admiralty,  upon  the 
ground  that  they  were  necessary  measures  of  self-defense  to  which  all 
])rivate  rights  must  give  way. 
In  the  case  of  the  /Success  (1  Dodson  Eep.,  j).  133),  he  said: 

The  blockade  thus  imposed  is  certainly  of  a  new  and  extended  kind, 
but  has  arisen  necessarily  out  of  the  extraordinary  decree^  issued  by 
the  ruler  of  Trance  against  the  commerce  of  this  country,  and  subsists, 
therelore,  in  the  apprehension  of  the  coiut  at  least,  in  perfect  justice. 

In  the  case  of  the  Fox  (1  Edwards  Adm.  llei).,  314),  he  remarked  in 
reference  to  che  same  orders : 

When  the  state,  in  consequence  of  gross  outrages  upon  the  laws  of 
nations  committed  by  it*;  ;'«i.v.  .sary,  Avas  compelled  by  a  nei^CNsity 
which  it  laments,  to  resort  co  measures  which  it  otherwise  condemns,  it 
l)ledged  itself  to  the  revocation  of  those  measures  as  soon  as  the 
necessity  ceases. 

Again,  speaking  of  those  retaliatory  measures  as  necessary  for  the 
defense  of  commerce,  he  says  iu  another  case : 

In  that  character  they  have  been  justly,  in  my  apprehension,  deemed 
reconcilable  with  those  rules  of  natural  justice  by  which  the  inter- 
national communication  of  independent  states  is  usually  governed. 
(The  l^nipe,  Edw.  Adm.  liep.,  382.) 

Lord  Sto well's  judgments  in  these  cases  have  never  been  criticised 
or  disapproved  by  any  court  of  justice,  nor  by  any  writer  of  repute  on 
international  law.  The  necessity  relied  upon  might  perhaps  be  (jues- 
tioned,  but  when  that  is  established,  it  is  not  to  be  doubted  that  it 
becomes  the  measure  of  the  right. 

Another  very  forcible  illustration  of  the  principle  contended  for,  is  to 
be  seen  in  the  exclusive  right  asserted  by  Great  Britain  to  the  fisheries 
on  the  Newfoundland  and  Nova  Scotia  coasts,  not  only  within  what 
are  <!alled  the  territorial  seas,  but  as  far  from  the  coast  as  the  lisheries 
extend.  The  full  diplomatic  discussion  of  this  subject  will  be  found  in 
the  '■'■  Documents  rehiting  to  the  t .  ansactions  at  tJie  negotiation  of  Ghent, 
collected  and  published  by  John  (jmncy  Adams,  one  of  the  CommissionerH 
of  the  United.  Statrs.^^  The  occasion  was  the  negotiation  of  the  treaty 
of  peace  between  the  United  States  and  Great  Britain,  at  the  conclu- 
sion of  the  war  of  1812. 


:|i;l: 

l;-!,i. 

-il'\' 


■■i^t 


'M 


xii 


■»',■;■ 


150 


ARGUMENT   OP   'CHE   UNITED   STLuZTEa. 


f- 


1^ 


'■ 


One,  material  question  very  much  disewsHed  and.  ctonsidered,  was  the 
right  to  be  accorded  to  the  United  States  in  th*«t-  lislieries,  By  the 
treaty  of  1783  between  those  countries,  at  ti»e  cios  :  :he  Eevolutionary 
War,  certain  rights  in  them  had  been  con<e<-led  bT- Great  Britain  to  her 
colonies,  whose  independence  was  in  that  treaty  iidraiitted.  When  the 
treaty  ct'  1815  was  made,  it  was  chiimed  by  Grreat  Britain  that  the 
treaty  of  1783  had  been  abrogated  by  the  subsequ«iT  war,  and  that  the 
right  of  the  Americans  to  participate  in  tue  fisheri**-:,  granted  by  that 
treaty,  liad  by  its  abrogation  been  lost.  The  relative  contentions  of 
the  parties  will  b<-  clearly  seen  by  perusal  of  Mr.  Adams's  exhaustive 
resume  of  the  history  and  merits  of  the  (piestion,  and  from  the  citations 
he  adduced.     (Pp.  lOG-109,  1G7-1G9,  184-185,  187-lJM).) 

It  was  contended  by  Great  Britain  and  concede<l  by  the  United 
States  that  all  those  fisheries,  both  within  and  without  the  line  of  ter- 
ritorial jurisdictioTi,  were  previous  to  the  Eevolutionary  War,  the  ex- 
clusive property  of  Great  Britain,  as  an  appurtenant  to  its  territory. 
On  this  point  thert*  was  no  dis;)ute,  although  the  tisheries  in  question 
extended  in  the  open  sea  almost  five  dejiiees  of  latitude  from  the  coast, 
and  along  the  whole  northern  coast  of  ^mw  England,  Nova  Scotia,  the 
Gulf  of  St.  Lawrence,  and  Labrador.' 

Upon  this  view,  entertained  by  both  nistions  and  by  all  the  eminent 
diplomatists  and  statesmen  who  participuaed  in  making  or  discussing 
these  treaties,  the  contention  turned  upmi  the  true  construction  of  the 
grant  of  fishing  rights  contained  in  the  treaty  of  1783.  It  was  claimed 
by  the  British  (government  that  this  watB-ii  pure  grant  of  rights  belong- 
ing e^Ecluisjveiy  t.>  Great  Britain,  and  mo  which  the  Americans  could 
have  no  claim.  e:v"ept  so  far  as  they  were  (iouferred  by  treaty.  It  was 
contented  on  the  other  side,  that  the  Aimerieans,  being  British  subjects 
up  to  th«  time  <»'  ihe  Eevolutionary  W  jie.  entitled  and  accustomed  as 
such  to  (dwre  in  tliese  fisheries,  the  acqmisition  of  whi(;h  from  France 
had  been  largely  due  to  their  valour  auxa  exertions,  their  right  to  par- 
ticipate m  tfteni  was  not  lost  by  the  Eevolution,  nor  by  the  change  of 
goveiaHBHit  which  it  brought  about,  when  (sonsummated  by  the  treaty 
of  ITSuu  And  that  the  provisions  of  tiiat  treaty  on  the  subject  were  to 
be  construed,  not  as  n  grant  of  a  now  right,  but  as  a  recognition  of  the 
American  title  still  to  participate  in  a  property  that  before  the  war  was 
common  to  both  conntxues.  Which  side  >f  this  contention  M'as  right, 
it  is  quite  foreign  to  the  present  purpose  ^>  con.sider.    It  is  enough  to 


'For  full  ([UotationH  from  Mr.  Adtuna,  sou  ATipendix,  infra,  pp.  187-189. 


RIGHT    TO    PUOTECT    INTERESTS   AND    INDUSTRY 


157 


:;il 


perceive  that  it  never  occurred  to  the  United  States  Government  or  its 
eminent  representatives  to  claim,  far  less  to  the  British  Government  to 
concede,  nor  to  any  diplomatist  or  writer,  either  in  1783  or  1815,  to  con- 
ceive, that  these  fisheries,  extending  far  beyond  and  outside  of  any 
limit  ui  territorial  jurisdiction  over  the  sea  that  ever  was  asserted  there 
or  elsewhere,  were  the  getioral  property  of  n\ankind,  or  that  a  partici- 
pation in  them  was  a  part  of  the  liberty  of  the  open  sea.  If  that  prop- 
osition could  have  been  maintained,  the  right  of  the  Americans  wouhl 
have  been  plain  and  clear.  No  treaty  stipulations  would  have  been 
necessary  at  the  end  of  either  war.  (See  also  Wharton's  Dig.  vol.  iii, 
pp.  39-48.) 

It  will  be  perceived,  also,  that  in  the  caye  of  these  fisheries  there  was 
no  pretense  that  an  exclusion  of  the  world  from  partici[)ating  in  them 
outside  the  line  of  the  littoral  sea  was  necessary  to  their  i) reservation, 
or  that  such  participation  would  tend  to  their  extinction ;  though  un- 
questionably it  might  lead  to  a  diminution  of  the  profits  to  be  derived' 
from  them  by  the  inhabitants  of  the  territory  to  which  they  appertained. 

If  the  countries  now  conteiuling  were  right  then  in  the  views  enter- 
tained by  both  governments  and  by  all  wlio  were  concerned  for  them, 
in  cabinets,  diplomacy,  Congress,  and  Parliament,  and  in  the  claims 
then  made,  conceded  and  acted  upon  ever  since,  the  precedent 
thus  established  must  be  decisive  between  them  in  the  present  case. 
There  can  not  be  one  international  law  for  the  Atlantic  and  another 
for  the  Pacific.  If  the  seals  may  be  treated,  like  the  fish,  as  only  fcrce 
naturw,  and  not  property,  if  tlie  mnintenaiico  of  tJio  herd  in  the 
Pribilof  Islands  is  only  a  fisliery,  how  then  can  the  case  be  distin- 
guished from  that  of  the  fisheries  of  Nova  Scotia  ami  Newfoundland? 
Why  would  it  not  be,  until  conceded  away  by  treaty  or  tlirown  open 
to  the  world  by  consent,  a  proprietary  riglit  belonging  to  the  territory 
to  which  it  appertains,  and  which  the  Government  has  a  right  to 
defend  t 

But  the  case  of  the  seal  iiulustry  is  far  stronger  than  that  of  the 
fisheries  in  favor  of  such  a  right.  The  great  facts  of  the  nature  of 
tlie  animals,  their  attachment  to  the  laiul,  without  which  they  could  not 
exist,  their  constant  animus  revcrtcndi,  the  protection  there,  in  defanlt 
of  which  they  wonld  x)ei"ish,  and  the  absolute  necessity  of  excluding 
outside  interference  with  them,  in  order  to  prevent  their  extiiustion,  not 
only  greatly  strengthen  the  proprietary  title,  but  annex  to  it  the 
further  and  unquestionable  riglit  of  self-defense,  iu  respect  to  those 


I 

•'r  f 


\ ii 


mM: 


158 


ARGUMENT    OF    THE    UKITED    STATES. 


1  , 


interests  on  shore  in  which  the  propovty  is  not  denied  nor  open  to 
■  dispute. 

The  jurisdiction  accorded  to  nations  over  the  littoral  seas  is  by  no 
means  the' only  instance  in  HYuicti  rules  of  international  law,  now  com- 
pletely established  and  universally  recognized,  and  under  which  the 
freedom  of  the  sea  has  been  largely  abri  dged,  have  arisen  out  of  the 
right  and  necessity  of  self-defense,  and  out  of  the  general  principle 
that  to  such  necessity  individual  righ  ts  and  the  acquisition  of  private 
emoluments  upon  the  ocean  must  give  way. 

Some  of  these  rules  relate  to  the  interests  of  nations  when  engaged 
in  war,  and  others,  like  that  which  concedes  the  jurisdiction  over  terri- 
torial seas,  chietly  to  the  interests  of  peace. 

Tlie  right  of  self-defense,  as  affecting  nations,  is  no  greater  in  war 
than  in  peace.  Certain  necessities  are  sometimes  greater  in  one  state 
than  in  the  other.  But  in  both  the  measure  of  the  7iecessity  is  the 
•  measure  of  the  right,  and  the  justifiable  means  of  self- protection  are 
such  as  the  case  requires.  It  is  the  principle  that  controls  the  case, 
not  the  case  that  controls  the  principle.  The  state  of  war  only  exists 
between  the  belligerents,  and  is  only  material  between  them  and 
neutrals,  so  far  as  it  gives  rise  to  a  particular  necessity  on  the  part  of 
a  belligerent,  that  would  not  otherwise  arise. 

The  international  law  of  piracy  is  an  infringement  of  the  right  which 
even  a  criminal  has,  to  be  tri-^d  in  the  jurisdiction  where  his  crime  was 
committed,  aud  if  upon  the  high  sea,  in  the  jurisdiction  to  which  his 
vessel  behmgs.  Such  is  the  rule  in  respect  to  every  otlier  crime  known 
to  the  law.  But  if  an  American  in  an  American  ship  commits  an  act  ot 
piracy  on  tlie  high  seas  on  a  British  vessel,  he  may,  by  the  rules  of 
international  law,  be  ca))turcd  by  a  French  cruiser,  taken  into  a  French 
port,  and  there  tried  and  executed,  if  France  thinks  proper  to  extend 
the  jurisdiction  of  her  courts  to  such  a  case.  The  reason  of  this  well- 
settled  rule  is  not  found  in  the  character  of  the  crime,  which  is  but  rob- 
bery and  murder  at  worst,  but  in  the  necessity  of  general  defense,  in 
which  all  sea-going  nations  have  a  like  interest  and  therefore  a  like 
right  to  intervene,  without  waiting  for  the  tardy  or  uncertain  action  of 
others. 

The  slave  trade  is  an  oflfense  for  which  the  sea  is  not  free,  though  not 
yet  regarded  in  international  law  as  i)iracy,  because  there  are  still 
countries  where  slavery  is  legalized.  But  there  is  no  question  that  a 
nation  whoso  laws  prohibit  slavery  may  capture  on  the  high  sea  any 
vessel  laden  with  slaves  intended  to  be  landed  on  her  coaat,  or  any  ves- 


RIGHT   TO   PROTECT   INTERESTS   AND   INDUSTRY. 


159 


sel  sailing  for  the  purpose  of  prosecuting  the  slave  trade  on  her  shores. 
N.jr  is  there  any  doubt  that  so  soon  as  the  abolition  of  slavery  becomes 
universal,  international  law  will  sanction  dealing  with  a  slaver  as  with 
a  i)irate,  and  for  the  same  reason  of  general  self-defense. 

ISov  is  the  sea  free  to  any  vessel  whatever,  n:>t  carrying  the  flag  of 
some  country,  and  shown  by  its  papers  to  be  entitled  to  carry  that  flag; 
and  the  armed  vessel  of  any  nation  may  capture  a  vessel  not  so  pro- 
tected. Sailing  independently  of  any  i)articular  nationality  is  harmless 
in  itself,  and  may  be  consistent  with  entire  innocence  of  conduct.  But 
if  allowed,  it  might  offer  a  convenient  shelter  for  muny  wrongs,  and  it 
is  therefore  prohibited  by  the  law  of  nations. 

Innocent  trade  may  also  be  prohibited  by  any  nation  between  other 
nations  and  its  colonies,  for  reasons  of  policy.  iSuch  restrictions  have 
been  frequent,  and  their  propriety  has  never  been  questioned.  That  a 
vessel  engaged  in  such  prohibited  trade  may  be  captured  on  the  high 
seas  and  condemned,  is  shown  by  the  case  of  Church,  v.  Hubbart,  and 
other  authorities  above  cited. 

These  are  instances  of  the  exercise  upon  the  sea  of  the  general  right 
of  self- protection,  for  the  common  benefit  of  nations,  irrespective  of  the 
particular  necessity  of  any  one  country.  In  most  cases,  restrictions 
imposed  upon  the  freedom  of  the  sea  arise  out  of  some  particular 
national  necessity. 

Thus  it  is  well  settled,  that  any  vessel  guilty  of  an  infraction  of  a 
revenue  or  other  law  within  the  territorial  waters  of  a  nation,  may  be 
pursued  and  captured  on  the  high  seas;  because,  otherwise,  such  laws, 
devised  for  the  protection  of  the  national  interests,  might  fail  of  being 
adequately  enforced. 

Upon  this  i)rinciple  also,  was  based  the  British  act  putting  restric- 
tions upon  the  passage  of  a  vessel  on  the  high  sea,  approaching  Great 
Britain  from  a  port  where  infectious  disease  was  raging.  Quarantine 
and  health  regulations  are  usually  enforced  within  the  jurisdictional 
limit,  and  so  confined,  are  in  ordinary  cases  suflQcient  for  their  purpose. 
But  when  in  a  i^articular  case  they  are  iusuliicieut,  and  the  necessity 
of  protecting  the  country  from  incursion  of  dangerous  disease  requites 
it,  n.)  right  of  freedom  of  the  sea  stands  in  the  way  of  putting  proiier 
ro.-itrictions  on  the  approach  of  vessels,  at  any  distance  from  the  shore 
taat  may  be  found  requisite.    (6  Geo.  IV,  ch.ap.  78.) 

The  very  gcave,  and  often,  to  innocent  individuals,  ruinous  restraints 
upon  neutral  trade  for  the  interest  of  beUigerents,  the  validity  of  which 
bus  long  been  established  in  intern  atioual  law,  atFord  a  strong  example  of 


t!*i^ 


if 


160 


ARGUMENT   OF   THE    UNITED   STATES. 


: ; 


ir 

I: 


the  application  of  the  same  principle.  If  a  port  is  blockaded,  no  neutral 
ship  can  enter  it  for  any  purpose  whatever,  even  for  the  continuance 
of  a  regular  and  legitimate  commerce  established  before  the  war  began. 
And  such  ship  is  not  only  prevented  from  entering  the  i)ort,  on  i)ain  of 
capture  and  confiscation  of  vessel  and  cargo,  but  is  liable  to  be  cap- 
tured anywh-ire  upon  the  high  seas  and  condemned,  if  it  can  be  shown 
either  that  the  voyage  is  intended  for  a  breach  of  the  blockade,  or  that 
such  breach  has  actually  taken  place.  And,  though  such  is  not  the 
general  rule,  it  is  shown  by  the  decision  of  Lord  Stowell,  before  cited, 
that  if  the  necessities  of  a  successful  i)rosecution  of  the  war  require  it^ 
a  belligerent  may  even  interdict  neutral  commerce  with  ports  not  block- 
aded. Admitted  by  that  great  jndge  that  such  a  measure  is  unusual, 
harsh,  and  distressing,  and  not  to  be  resorted  to  without  necessity,  it  is 
nevertheless  held  to  be  justifiable  when  the  necessity  does  actually 
arise,  though  that  necessity  is  only  for  the  more  effectual  prosecution 
of  a  war. 

The  same  rule  applies  to  the  conveyance  by  a  neutral  to  a  belligerent 
port,  of  freight  which  is  contraband  of  war,  though  such  freight  may 
not  be  designed  to  be  in  aid  of  the  war,  but  may  be  only  the  continu- 
ance of  a  just  and  regular  commerce,  before  established.  And  a  vessel 
may  be  captured  anywhere  on  the  high  seas  if  found  to  be  engaged  in 
that  business. 

And  80  if  a  neutral  vessel  is  engaged  in  the  conveyance  of  belligerent 
dispatches  or  of  passengers  belonging  to  the  military  or  naval  service 
of  a  belligerent,  though  the  vessel  so  employed  may  be  a  regular  pas- 
senger ship  on  its  accustomed  route  as  a  common  carrier. 

Hostile  freight  on  a  neutral  ship  has  long  been  held  liable  to  capture. 
If  the  rule  that  the  flag  covers  the  cargo  may  now  be  said  to  be  estab- 
lished, it  is  of  comparatively  recent  origin. 

Upon  the  same  principle  has  been  maintained  the  right  of  visitation 
and  search,  as  against  every  private  vessel  on  the  high  seas,  by  the 
armed  ships  of  any  other  nationality.  Tliougli  this  vexatious  and 
injuriotis  (slaim  has  been  mucli  questioned,  it  is  firmly  established  in 
time  of  war,  at  least,  as  against  all  neutrals.  Says  Sir  William  Scott, 
in  the  case  of  Le  Louis  (2  Dodson,  244) : 

This  right  (of  search),  incommodious  as  its  exercise  may  occasionally 
be,  *  *  *  has  been  fully  established  in  tlie  legal  practice  of  nations, 
havinc;  for  its  foundation  the  necessities  of  selt-dcfcnsc.  • 


'  Says  Mr.  Twiss  (Rights  and  Duties  of  Natidiis  iu  Tiiuo  of  War,  eil.  1863,  p.  176) : 
"The  right  of  visiting  uud  Boarohiiig  merchant  Bhips  on  tho  high  Beas,  observes 


RIGHT  TO    PROTECT   INTERESTS   AND   INDUSTRY. 


161 


It  has  been  said  that  the  right  of  search  is  couflned  to  a  time  of  war. 
That  assertion  proceeds  upon  the  ground  that  only  in  time  of  war  can 
the  necessity  for  it  arise.  No  one  has  ever  chiinied  that  the  right 
shouUl  be  denied  in  time  of  peace,  if  an  equal  necessity  for  it  exists. 
And  when  such  necessity  has  been  regarded  as  existing,  the  right  has 
been  asserted.  Prior  to  tlie  war  of  1812,  between  the  United  States 
and  Great  Britain,  the  latter  country  claimed  the  right  in  time  of  peace 
to  search  American  ships  on  the  high  seas  for  British  subjects  serving 
as  seamen.  Though  the  war  grew  out  of  this  claim,  it  was  not  relin- 
quished by  Great  Britain  when  a  treaty  of  peace  was  made.  It  has 
been  disused,  but  never  abandoned.  The  objection  to  it  on  the  part  of 
tiie  United  States  was  the  obvious  one  that  it  was  founded  upon  no 
just  necessity  or  propriety.  Had  it  been  a  measure  in  any  reasonable 
sense  necessary  to  self-defense  on  the  part  of  Great  Britain,  its  claim 
would  have  rested  on  a  very  different  foundation,  and  would  iiavebeen 
supported  by  the  analogy  of  all  similar  cases.  The  right  of  search  is 
exercised  without  question  as  against  private  vessels  suspected  of  being 
engaged  in  the  slave  trade.  And  it  is  very  apparent,  that  as  the  in- 
creasing exigencies  of  international  intercourse  of  all  kinds  render  it 
necessary,  the  principle  that  allows  it  in  time  of  war  will  be  found  suf- 
ficient to  allow  it  in  time  of  peace.  The  rule,  as  has  been  seen,  grows 
out  of  necessity  alone,  and  must  therefore  extend  with  the  necessity. 

Lord  Aberdeen,  in  a  letter  of  20th  of  December,  1841,  to  Mr.  Everett, 
American  minister  (British  and  Foreign  State  Papers,  vol.  30,  p.  1177), 
flaims  the  right  of  visitation  of  vessels  on  high  seas  in  time  of  peace, 
far  enough  at  least  to  ascertain  their  nationality.  And  in  his  dispatch 
to  Mr.  Fox,  says : 

Lord  Stowell  in  the  well-known  case  of  the  Swedish  convoy,  whatever  be  the  ships, 
whatever  be  the  cargoes,  whatever  be  the  destinations,  is  an  incontestable  right  cf 
the  lawfully  commissioned  ship  of  a  belligerent  nation ;  because,  till  they  are  visited 
and  searched,  it  does  not  appear'  what  the  ships,  or  the  cargoes,  or  the  destinations 
are;  and  it  is  for  the  purpose  of  ascertaining  these  points  that  the  necessity  of  this 
light  of  visitation  and  search  exists." 

I'ivery  vessel  is  bound  to  submit  to  visitation  and  search,  whether  it  be  the  vessel 
of  a  friend  or  of  nn  ally  or  even  of  a  subject;  and  submission  may  be  compelled,  if 
lu'cessary,  by  force  of  arms,  williout  giving  claim  for  any  damage  incurred  thereby, 
if  thf  vessel  upon  visitation  should  be  found  not  liable  to  be  detained.  •  •  • 
If  the  vessel  be  neutral,  a  belligerent  is  entitled  to  ascertain  whether  there  is  a  con- 
traband of  war  or  enemy's  dispatches  or  military  or  naval  officers  of  the  enemy  oa 
board. 

"  If  the  master  of  a  nentral  vessel  resists  by  force  (the  right  of  search)  that  is  a 
ground  of  conttscation,  and  cousoiiueutly  of  capture,"  (Wildmau's  Rights  of  Ves- 
eels,  chap.  2,  p.  6.) 

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162 


ARGUMENT   OP  THE   UNITED    STATES. 


That  it  (the  British  Government)  still  maintains,  and  would  exercise 
when  necessary  its  own  right  to  ascertain  the  genuineness  of  any  flag 
which  a  suspected  vessel  might  bear;  that  if  in  the  exercise  of  this 
right,  either  from  involuntary  error  or  in  spite  of  every  precaution,  loss 
or  injury  should  be  sustained,  a  prompt  reparation  would  be  afforded; 
but  that  it  should  entertain  for  a  single  instant  the  notion  of  abandon- 
ing the  right  itself  would  be  quite  impossible.  (Webster's  Works,  vol. 
6,  p.  334.) 

Mr.  Webster  disputes  this  right,  but  has  to  admit  that  it  does  exist 
when  specially  necessary.    He  says : 

That  there  is  no  right  to  visit  in  time  of  peace  except  in  the  execution 
of  revenue  laws  or  other  municipal  regulations,  in  which  cases  the  right 
is  usually  exercised  near  the  coast  or  within  the  marine  league,  or 
where  the  vessel  is  justly  suspected  of  violating  the  law  of  nations  by 
piratical  aggression ;  but,  wherever  exercised,  it  is  a  right  of  search. 
(Webster's  Works,  vol.vi ,  p.  336.) 

The  principle  that  thus  subordinates  private  i  ight  to  national  neces- 
sity, is  well  stated  by  Mr.  Manning  (Int.  Law,  chap.  3,  p.  252) : 

The  greatest  liberty  which  law  should  allow  in  civil  government,  is 
the  power  of  doing  everything  that  does  not  injure  any  other  person, 
and  the  greatest  liberty  which  justice  among  nations  demands,  is  that 
every  state  may  do  anything  that  does  not  injure  another  state  with 
which  it  is  at  amity.  The  freedom  of  commerce  and  the  rights  of  war, 
both  undoubted  as  long  as  no  injustice  results  from  them,  become  ques- 
tionable as  soon  as  their  exercise  is  grievously  injurious  to  any  inde- 
pendent state,  but  the  great  difference  of  the  interest  concerned  makes 
the  trivial  nature  of  the  restriction  that  can  justly  be  i)laced  upon 
neutrals  appeiir  inconsiderable,  when  balanced  against  the  magnitude 
of  the  national  enterprises  which  unrestricted  neutral  trade  might  com- 
promise. That  some  interference  is  justitiable,  will  be  obvious  on  the  con- 
sideration that  if  a  neutral  had  the  power  of  unrestricted  commerce,  he 
might  carry  to  a  port  blockaded  and  on  the  point  of  surrendering,  pro- 
visions which  should  enable  it  to  hold  out  and  so  change  the  whole 
issue  of  a  war;  and  thus  the  vital  interests  of  a  nation  might  be  sacri- 
ficed to  augment  the  riches  of  a  single  individual. 

Azuni  carries  the  principle  still  further,  and  holds  that  even  national 
rights  should  yield  to  the  rights  of  another  nation,  when  the  conse- 
quences to  the  latter  are  the  more  important.  He  remarks  (part  ii, 
chap,  ni,  art.  2,  sec.  4,  p.  178) : 

When  the  perfect  right  of  one  nation  clashes  with  the  perfect  right 
ot  another,  reason,  justice,  and  humanity  require  that  in  such  case  the 
one  that  will  experience  the  least  damage  should  yield  to  the  other. 

A.nd  Paley,  in  a  striking  passage,  applies  the  same  principle  even  to 
the  obligation  to  observe  treaties,  one  of  the  highest  obligations  known 
to  international  law.    (Moral  Philosophy,  book  6,  chap.  12.) 


RIGHT   TO   PROTECT    INTERESTS   AND    INDUSTRY. 


163 


When  the  adherence  to  a  public  treaty  would  enslave  a  whole  peo- 
ple, would  block  up  seas,  rivers  or  harbors,  depopulate  cities,  condemn 
fertile  regions  to  eternal  desolation,  cut  off  a  country  from  its  sources 
of  provision  or  deprive  it  of  those  commercial  advantages  to  which  its 
climate,  productions,  or  commercial  situation  naturally  entitle  it,  the 
magnitude  of  the  particular  evil  induces  us  to  call  in  question  the  ob- 
ligation of  the  general  rule.  Moral  philosophy  furnishes  no  precise  so- 
lution to  these  doubts.  •  •  •  siJe  confesses  that  the  obligation  of 
every  law  depends  upon  its  ultimfite  utility;  that  this  utility  having  a 
finite  and  determinate  value,  situations  may  be  feigned  and  conse- 
quently may  possibly  arise,  in  which  the  general  tendency  is  outweighed 
by  the  enormity  of  the  particular  mischief. 

In  all  these  cases  of  restrictions  upon  private  rights  on  the  high 
seas,  fiirailiar  and  well  settled,  the  principle  upon  which  they  rest  is 
the  same,  the  subordination  of  individual  interest  to  that  of  a  nation, 
when  necessity  requires  it.  Upon  no  other  ground  could  they  be 
defended.  Grotius,  speaking  of  neutral  trade  in  articles  not  usually 
contraband  of  war,  but  used  indiscriminately  in  war  and  peace,  such 
as  money,  provisions,  etc.,  says  (book  III,  ch.  1,  sec.  5) : 

For,  if  I  can  not  defend  myself  without  seizing  articles  of  this 
nature  which  are  being  sent  to  my  enemy,  necessity  gives  me  the  right 
to  seize  them,  as  we  have  already  explained  elsewhere,  under  the 
obligation  of  restoring  them  unless  there  be  some  other  reason  super- 
vening to  prevent  me. 

Mr.  Wheaton,  commenting  upon  this  opinion  of  Grotius,  points  out 
that  it  is  placed  by  that  author  entirely  upon  the  ground  of  the  right 
of  self-defense,  under  the  necessities  of  a  particular  case;  that  Grotius 
does  not  claim  that  the  transportation  of  such  property  is  illegal  in 
itself,  or  exposes  the  vessel  carrying  it  to  capture;  but  that  necessity 
nevertheless  justifies  in  the  case  in  which  it  actually  arises,  the  seizure 
of  the  vessel  as  a  measure  of  self-defense.  And  he  shows  by  further 
reference  that  it  was  the  opinion  of  Grotius  that  a  necessity  of  that 
sort  exempts  a  case  from  all  general  rules.    (Law  of  Nations,  p.  128.) 

Mr.  Manning  (p.  263)  thus  deliues  the  rights  of  belligerents  as  against 
neutral  commerce: 

"It  consists  merely  in  preventing  vessels  from  interfering  with  the 
rights  of  belligerents,  and  seeking  their  own  emolument  at  the  direct 
expense  of  one  party  in  the  contest." 

And  Azuni  (part  2,  chap,  ii,  art.  2,  sec.  14,  p.  91)  remarks: 

"The  truth  of  this  theory  (right  of  neutral  trade)  does  not,  however, 
deprive  belligerents  of  the  right  of  stopping  the  commerce  of  neutrals 
with  the  enemy,  when  they  deem  it  necessary  for  theii"  own  defense." 


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ARGUMENT   OF   THE   UNITED    STATES. 


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The  illustrations  thus  cited  are  cases  of  such  common  and  frequent 
occurrence,  that  the  rules  which  control  them  have  become  exactly 
formulated  by  courts  of  justice,  as  well  as  by  writers  ou  the  subject, 
and  have  passed  by  common  consent  and  usage  into  the  domain  of  set- 
tled international  law. 

But  many  instances  have  occurred  in  the  history  of  nations,  excep- 
tional in  their  character  and  not  provided  for  under  any  general  rule, 
where  a  similar  necessity  to  that  which  dictated  those  rules  has  required 
an  analogous  act  of  self-defense  by  a  nation,  in  some  particular  case. 
And  such  protection  has  been  extended,  through  both  legislative  and 
executive  action,  by  the  governments  aft'ected.  Some  of  these  instances 
may  be  usefully  referred  to,  since  they  are  in  complete  analogy  to  the 
present  case,  except  that,  both  in  respect  to  the  necessity  that  prompted 
them  and  the  importance  of  the  injury  sought  to  be  restrained,  they  all 
fall  far  short  of  the  exigency  here  under  consideration. 

In  the  valuable  pearl  fisheries  of  Ceylon,  the  British  authorities  have 
long  excluded  all  other  nations  from  participation  in  or  interference 
with  them,  though  these  fisheries  extend  into  the  open  sea  for  a  dis- 
tance varying  from  6  to  20  miles  from  the  shore. 

A  regulation  was  enacted  by  the  local  British  authorities,  of  March 
9,  1811,  authorizing  the  seizure  and  forlieiture  of  any  vessel  found 
hovering  on  the  pearl  banks  on  the  west  coast  of  Ceylon,  on  water 
of  between  4  and  12  fathojns,  the  same  being  an  area  of  the  open 
sea  extending  90  miles  up  and  down  the  coast  and  of  variable  width, 
but  distant  about  20  marine  miles  from  the  coast  at  the  farthest  point. 
This  regulation  is  still  in  force.  (Regulations  l^o.  3,  of  1 811,  for  the  pro- 
tection of  Her  Majesty's  pearl  banks  of  Ceylon). 

An  ordinance  issued  in  1812  prohibited  the  use  of  any  dredge  for 
fishing  within  the  limits  of  the  pearl  banks,  on  pain  of  forfeiture  and 
imprisonment. 

The  ordinance  of  November  30,  1843,  prohibited  the  possession  or 
use  of  nets,  dredges,  and  other  instruments  such  as  might  be  prejudicial 
to  the  Government  pearl  banks,  uithin  12  miles  of  any  part  of  the 
shore  lying  between  two  designated  points.  The  penalties  annexed 
were  forfeiture  and  imprisonment.  Suspected  persons  might  be 
searched.  This  regulation  is  still  in  force.  (No.  18, 1843,  an  ordinance 
to  declare  illegal  the  possession  of  certain  nets  and  instruments  within 
certain  limits.) 

The  ordinance  of  November  18, 1890,  prohibited  all  persons  from 


RIGHTS   TO    1  ,.OTECT    INTERESTS   AND   INDUSTRY. 


165 


Ashing  for  clianka,l)f'clies-cle  mor,  corals,  or  shells  within  an  area  lying 
inside  of  a  straight  line  drawn  up  and  down  tlie  coast,  the  ends  being 
distant  6  milen  from  shore,  and  tlie  most  remote  point  being  <1  ^tant 
over  2^  mile^  from  shore.  Forfeiture,  fine,  and  imprisonment  were  the 
penalties  proscribed.  Tliis  regulation  is  still  in  force.  (No.  18,  1890, 
an  ordinance  relating  to  chanks.)  (For  copies  of  these  acts,  see  Case 
of  the  United  States,  App.,  Vol.  i,  p.  461.) 

An  act  passed  iu  18SS  by  the  federal  council  of  Australia  extended 
(with  respect  to  British  vessels)  tlie  local  regulations  of  Queensland 
on  the  subject  of  the  pearl  fisheries  to  an  area  of  open  sea  off  the  coast 
of  Australia,  varying  in  width  from  13  to  250  marine  miles.  Fines,  seiz. 
ures,  and  forfeitures  were  the  penalties  prescribed.    (51  Vict.,  No.  1.) 

An  act  passed  in  188'J  by  the  federal  council  of  Australia  exteii  'ed 
(with  respect  to  British  vessels)  the  local  regulations  of  western  Aus- 
tralia on  the  subject  of  the  pearl  ttslieries  to  an  area  of  open  sea  off  the 
northwestern  coast  of  Australia  lying  within  a  parallelogram  of  which 
the  northwestern  corner  is  500  marine  miles  from  the  coast.  (52  Vict., 
4th  Feb.,  1889,  Case  of  the  United  States,  App.,  Vol.  i,  p.  4GS.) 

Simil  ir  restrictions  upon  the  pearl  fisheries  in  the  open  sea  have  been 
likewise  interposed  by  the  Government  of  Colombia. 

A  decree  by  the  governor  of  Panama  in  the  United  States  of  Colom- 
bia, in  1890,  prohibited  the  use  of  diving  machines  for  the  collection  of 
pearls  within  a  section  of  the  Gulf  of  Panama,  which  is  between  60  and 
70  marine  miles  in  width,  and  of  which  the  most  remote  point  is  30  ma- 
rine miles  from  the  main  land.  (Gaceta  de  Panama,  February  G,  1890, 
Case  of  the  United  States,  App.,  Vol.  i,  p.  485.) 

Legislation  of  the  same  character  has  also  taken  place  in  France  and 
Italy  in  reference  to  coral  reefs  iu  the  open  sea  and  outside  the  juris- 
dicticmal  limits. 

Tlie  French  law  of  18G4  relating  to  the  coral  fisheries  of  Algeria  and 
Tunis  required  all  fishermen  to  take  out  licenses  to  fish  anywhere  on 
tlie  coral  banks,  which  extend  into  the  Mediterranean  7  miles  from 
shore.  In  addition  to  this  license  all  foreign  fishermen  were  required 
to  take  out  patents  from  the  Government,  for  which  a  considerable  sum 
had  to  be  paid ;  and  by  the  recent  act  of  1888,  foreign  fishermen  are  pre- 
cluded entirely  from  fishing  within  3  miles  from  shore,  apparently  leav- 
ing the  former  regulations  iji  force  with  respect  to  such  portions  of  the 
coral  banks  as  lie  outside  of  those  limits.  (Journal  Offlciel,  March  2, 
18ti8),  (Case  of  the  United  States.  App.,  Vol.  I,  p.  409.) 


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ARGUMENT  OP  THE  UNITED  STATES. 


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By  a  law  enacted  in  Italy  in  1877,  and  a  decree  issued  in  1892,  licenses 
are  required  of  all  vessels  operating  on  the  coral  banks  lying  off  the 
coast  of  Sardinia,  at  distances  which  vary  from  .3  to  15  miles  from  land. 

Under  the  regulations  there  prescribed,  the  discoverer  of  a  new  coral 
bed  at  any  point  is  entitled  to  take  possession  of  it,  and  to  identify  his 
discovery  by  means  of  a  buoy  suitably  marked,  which  confers  upon 
him  the  privilege  of  working  the  bank  as  a  private  monopoly  for  two 
years. 

Oflf  the  southwestern  coast  of  Sicily  there  are  three  coral  reefs,  situ- 
ated, respectively,  at  a  distance  of  14,  31,  and  32  miles  from  shore. 

The  Italian  law  of  1877  and  decree  of  1882  extend  to  these,  subject 
to  the  modifications  introduced  by  the  three  following  decrees.  (Official 
Pamphlets,  No.  3706,  series  2  of  March  4,  1877;  No.  1090,  series  3,  No- 
vember 13, 1882.) 

The  decree  of  1877  prohibited  all  fishing  on  the  nearest  of  the  three 
banks,  viz,  that  situated  14  miles  from  shore,  and  provided  that  the 
other  two  should  be  divided  into  sections  which  should  be  fished  in 
rotation. 

The  decree  of  1888  prohibited  all  operations  on  all  three  banks  until 
further  notice,  in  order  that  the  coral,  which  was  then  almost  ex- 
hausted, might  be  given  time  to  renew  itself.  • 

The  decree  of  1892  provided  that  fishing  might  begin  again  under 
the  original  regulations  after  the  close  of  the  fishing  season  of  1893. 
(Case  of  the  United  States,  App.,  Vol.  I,  p.  470). 

Oyster  beds  in  the  open  sea  have  been  made  the  subject  of  similar 
legislation  in  Great  Britain. 

A  section  of  the  Britisli  "  Sea  Fisheries  Act,"  1868,  conferred  upon 
the  Grown  the  right  by  orders  in  council  to  restrict  and  regulate  dredg- 
ing for  oysters  on  any  oyster  bed  within  twenty  miles  of  ?,  straight  line 
drawn  between  two  specified  points  on  the  coast  of  Ireland,  "  outside 
of  the  exclusive  fishexy  limits  of  the  British  Isles."  The  act  extends  to 
all  boats  specified  in  the  order,  whether  British  or  foreign  (31  and  32 
Vict.,  ch.  45,  sec.  67 ;  Oase  of  the  United  States,  App,,  Vol.  I,  p.  457). 

The  same  as  to  herring  fisheries:  "  The  Eerring  Fishery  {Scotland) 
Act,  1889^^  conferred  authority  upon  the  Fishery  Board  of  Scotland,  to 
prohibit  certain  modes  of  fishing  known  as  beam  trawling  and  other 
trawling,  within  an  area  of  the  open  sea  on  the  northeastern  coast  of 
Scotland  over  2,000  square  miles  in  extent,  of  which  the  most  remote 
point  is  about  30  marine  miles  from  land  (52  and  63  Vict.,  ch.  23,  sees. 
6,  7;  Oase  of  the  United  States,  App.,  VoL  I,  p.  458). 


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RIGHT  TO  PROTECT   INTERESTS   AND   INDUSTRY. 


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The  taking  of  seal,  in  whatever  country  they  have  been  found,  has 
been  in  an  especial  manner  the  subjeist  of  legislative  and  goveinuiental 
regulation  and  restriction  in  the  open  sea.  And  in  such  actions  Great 
Britain  and  Canada  have  been  conspicuous. 

By  an  act  of  the  British  Parliament  passed  in  1803,  the  colony  of  New 
Zealand  was  made  coextensive  with  the  area  of  land  and  sea  bounded 
by  the  following  parallels  of  latitude  and  longitude,  viz.,  33°  S,,  53°  8.; 
162°  E.,  175°  W.  The  southeastern  corner  of  this  parallelogram  is 
situated  in  the  Pacific  Ocean  over  700  miles  from  the  coast  of  New 
Zealand  (26  and  27  Vict.,  ch.  23,  sec.  2). 

In  1878  the  legislature  of  New  Zealand  passed  an  act  to  protect  the 
seal  fisheries  of  the  colony,  which  provides : 

(1)  For  the  establishment  of  an  annual  close  season  for  seals,  to  last 
from  October  1  to  June  1. 

(2)  That  the  governor  of  New  Zealand  miglit,  by  orders  in  council, 
extend  or  vary  this  close  season  as  to  the  whole  colony  or  any  part  thereof, 
for  three  years  or  less,  and  before  the  expiration  of  such  assigned  period 
extend  the  close  season  for  another  three  years.  (See  Fish  Protection 
Act,  1878,  42  Vict.,  No.  43.) 

Under  the  authority  of  this  statute,  a  continuous  close  season  was 
enforced  by  successive  orders  in  council,  from  Noveiiber  1,  1S81,  until 
December  31 ,  1889.  These  extreme  measures  were  deemed  necessary 
m  order  to  prevent  the  complete  extermination  of  the  seals  at  an  early 
date.  (See  Reports  of  Department  of  Marine  of  New  Zealand  for  the 
years  1882,  1885, 1886-'87, 1887-'88, 1889-'90.  Also  the  Report  of  the 
U.  g.  Fish  Commission.) 

Another  act,  passed  in  1884,  conferred  additional  authority  upon  the 
governor  in  council  to  make  such  special,  limited,  and  temporary  reg- 
ulations concerning  close  seasons  "  as  may  be  suitable  for  the  whole  or 
any  part  or  parts  of  this  colony,  etc."  All  seals  or  other  fish  taken  in 
Aiolation  of  such  orders  were  to  be  forfeited  with  the  implements  used 
in  taking  them.    (The  Fisheries  Conservative  Act,  1884, 47  Vict.,  No.  48.) 

A  third  act,  even  more  stringent  in  its  terms,  was  passed  in  1887, 
which  provided : 

(1)  That  the  mere  possession  of  a  seal  by  any  person  during  a  close 
season  should  be  proof,  in  the  absence  of  satisfactory  evidence  to  the 
contrary,  that  it  had  been  illegally  taken. 

(2)  That  all  vessels  taking  or  containing  seals  at  such  times  should  be 
forfeited  to  the  Crown. 


Il  ?! 


I'' 

Ik 


i!:!.H 


i'M 


'.1 


168 


ARGUMENT   OF   THE   UNITED    STATES. 


r 

V 
In 


1 ' 


I' 


(3)  That  the  coinmaiider  of  aiiy  public  vessel  Tnipht  seize.  Rearcli.  and 
tfike  any  vessel  so  otfending  anywhere  '-  ^vithiii  the  jnnsdiction  of  the 
government  of  the  colony  of  New  Zealand." 

In  other  words,  authority  was  conferred  by  these  nets  to  s^^i/e  vessels 
for  illegally  takiii^i  seals  over  an  area  of  tlie  open  sea  c  .rending  at  the 
furthest  point  70()  miles  from  tlie  coast;  and  the  government  of  New 
Zealand  has  since  kept  a  cruiser  activelv  employed  iu  cnfor'^ng  these 
regulations.  (The  Fisheries  Conservative  Act,  1887.  .I I  Viet..  No.  2.7; 
Rep.  of  U.  S.  Fish  Com. ;  Case  of  the  United  States,  App.,  "WoL  i,  p.  440.) 
An  ordinance  ot  the  Falkland  Islands,  passed  in  1881,  established  a 
close  season  fortlir  slands  and  the  surrounding  waters,  fnm  October 
to  April  in  eaci  Two  of  the  islands  lie  28  miles  apawi   and  thi;3 

regnijiticMi  is  eiii'M  I  ••  in  the  open  sea  iving  between  them.  ^Rep.  of 
IT.  H  '*'i*^'>  '  om.:  ilfidavit  of  Capt.  Buddingtoa;  Case  of  the  United 
Stai  j; .,  ^  435.) 

-  -il  Fishery  Act,  1892.  passed  in  April  of  that 
of  that  country,  proTides: 

be  killed  in  the  seal-tishing  grounds  lying  off 

poiod  of  the  year,  exeew:  l)etween  March  14  and 

.tad  that  no  seal  so  caught  shall  be  brought  within 

lAer  a  penalty  of  #4.0()(>  in  either  instance. 

"haf  leave  any  port  oi  the  colony  for  th^   seal 

a.  on  March.  12,  under  a  penalty  ot  "iii.lHiO. 


year  try  the  lt»g 

(1)  Thtf  im 
the  island 
April  2»,  n 
the  limits 

(2)  That  ~"  lat^^'m'^ 

fisheries  bt 


(3)  That  11(1  sttanur  >  lali  i  roceed  to  the  seal  fisheries  a  second  zime 
in  any  one  year,  unless  obliiBd  to  return  to  port  by  accident. 

This  act  extends  and  en-vges  the  scope  of  a  previous  act,  (iated 
February  22, 1879,  which  contained  similar  provisions,  but  with  smaller 
penalties,  and  also  the  provision  which  is  still  in  fox'ce,  that  no  seal 
shall  be  caught  of  less  weight  than  28  pounds.  (55  Vict.,  Case  of  the 
United  States,  App.,  Yol.  :..  p.  442.) 

The  seal  fisheries  of  Givenland  were  the  subject  of  concuvr'^iit  legis- 
lation in  1875,  187G,  and  1^77  by  England,  Norway,  Sweden,  Denmark, 
and  Netherlands,  which  prohibits  all  fishing  for  seals  by  the  inhabi- 
tants of  those  countries  before  April  3  in  any  year,  Avithin  an  area  of 
the  open  sea  bounded  by  the  following  parallels  of  latitude  and  longi- 
tude, viz,  67°  1^.,  75°  N.,  5°  E.,  17°  W.  (British  and  Foreign  State 
Papers,  vol.  Lxx,  pp.  367,  3*8,  5.13;  vol.  LXXlii,  pp.  282,  .^i,  708. 
"The  Seal  Fishery  Act,  iSS,"  3S  Vict.,  cap.  18.) 

Under  the  law  of  Uwng  say  fclie  killing  of  seals  on  the  Lobos  and 


hi 

U." 


% 


EIGHT   TO   PHOTECT   INTERESTS    Am)    INDUSTRY. 


169 


other  islands  "  in  that  part  of  the  ocean  adjnccnt  to  the  depnrtmonta 
of  Maldonado  and  Rocha  "  is  secured  to  contractors,  who  pay  to  the 
(jhiveniment  a  license  fee  and  duty.  (Acts  of  July  23,  1857,  and  June 
28,  1858,  Caraira,  vol.  i,  pp.  440  and  448,  Di8•e^l;  of  Laws.  Appendix 
to  the  Case  of  the  United  States,  Vol.  I,  p.  448.) 

By  the  law  of  Russia,  the  whole  business  of  the  pursuit  of  seals  in 
tikf  White  Sea  and  Caspian  Sea,  both  as  to  time  and  manner,  is  regu- 
lated, and  all  killing  of  the  seals  except  in  pursuance  of  such  regula- 
tions is  prohibited.  (Code  of  Russian  Laws  Coveiing  Rural  Industries, 
vol.  XII,  part  II.  Appendix  to  the  Case  of  the  United  States,  Vol.  I, 
p.  445.) 

The  hrm  and  resolute  recent  action  of  the  Russian  Government  in 
prohibiting  in  the  open  sea,  near  the  Commander  Islands,  the  same 
depredations  upon  the  seal  herd  that  are  complained  of  l)y  the  United 
States  in  the  present  case,  and  in  capturing  the  Canadian  vessels  en- 
gaged in  it,  is  well  known  and  will  be  universally  approved.  That 
Grreat  Britain,  strong  and  fearless  to  defend  her  rights  in  every  quarter 
of  the  globe,  will  send  a  fleet  into  those  waters  to  mount  guard  over 
the  extermination  of  the  Russian  seals  by  the  slaughter  of  pregnant 
and  nursing  females,  is  not  iv  be  reasonably  expected.  The  world  will 
see  no  war  between  Great  Britain  and  Russia  on  that  score. 

Tlie  "hovering  acis"  of  the  British  Parliament  and  of  the  American 
Congress  have  already  been  mentioned.  These  hovering  acts  were 
enacted  in  England  in  1730  and  in  the  United  States  in  17i)l),  and  pro- 
hibited the  transhipment  of  goods  at  sea  within  4  leagues  or  12  miles 
of  the  coast.    Fine  and  forfeiture  were  the  pres(!ribed  penalties. 

The  English  act  prohibited  any  foreign  vessel  having  on  board  tea 
or  spirits  from  "hovering"  within  2  leagues  or  6  miles  of  the  coast. 

The  American  act  authorized  the  officers  of  revenue  (Hitters  to  board, 
seai<!h,  examine,  and  remain  on  board  of  all  incoming  vessels,  domestic 
or  foreign,  when  within  4  leagues  or  12  miles  of  the  (!oast.  (9  Geo.  II, 
<■!  35;  U.  S.  Rev.  Stat.,  sees.  2700,  2807,  2808;  Case  of  the  United 
iStates,  App.,  Vol.  I,  p.  493.) 

The  French  legislation,  which  is  in  effect  similar  to  the  English  and 
American  hovering  acts,  has  also  been  before  alluded  to.' 

The  British  act  in  reference  to  vessels  clearing  from  infected  ports 
has  also  been  referred  to,  which  required  all  vessels  coming  from  plague- 


iSUS 


'  For  the  subatauco  of  these  acts,  as  stated  by  M.  Creep,  see  Appeudiz,  in/ra, 
p!igel89.  • 


!l!>!!Ua<  IBH'mm!  lUJtiH  UlinUIHW 


170 


ARGUMENT  OP  THE   UNITED   STATES. 


IH 


\m'' 


If: 


'..'i  * 


Ktricken  places  to  make  signals  on  meeting  other  ships,  4  leagues  from 
coast.    (20  Geo.  II,  Oil.  — .) 

Another  act  establishes  2  leagues  from  the  coast  as  the  distance 
within  which  sliips  are  amenable  to  the  British  quarantine  regula- 
tions.    (0  (leo.  IV^,  ch.  78.) 

Another  act  of  the  British  Parliament  affords  a,  conspiimous  instance 
of  ft  control  exercised  over  tlie  high  sea,  lor  a  long  distance  outside  the 
utmost  boundary  of  a  littoral  sea,  as  a  means  of  a  defense  against  a 
special  danger  then  thought  to  exist.  It  was  passed  and  enforced  for 
the  purpose  of  preventing  the  escape  of  the  Emperor  Napoleon  when 
confined  on  the  island  of  St.  Helena. 

This  act  authorized  the  seizure  and  condemnation  of  all  vessels  found 
hovering  within  8  leagues  or  24  miles  of  the  coast  of  St.  Helena  during 
the  captivity  of  Napoleon  Bonaparte  on  the  island,  reserving  to  ships 
owned  exclusively  by  foreigners  the  privilege  of  first  being  warned  to 
depart  before  they  could  legally  be  seized  and  condemned,  (D6  Geo. 
Ill,  ch.  23;  Case  of  the  United  States,  App.,  vol.  1,  i>.  495.) 

A  sull  more  extensive  and  very  recent  assumption  of  dominion  over 
tlie  sea  for  defensive  and  fiscal  purposes,  is  to  be  found  in  an  act  passed 
by  the  legislature  of  Queensland  on  June  24, 1879,  which  annexed  to 
that  country  all  tlie  isdands  lying  off  tlie  northeastern  coast  of  Austra- 
lia, within  a  defined  limit,  which,  at  its  furthest  point,  extends  250 
miles  out  to  sea. 

The  boundary  thus  adopted  includes  nearly  the  whole  of  Torres 
Strait,  a  body  of  water  GO  miles  in  width,  separating  Australia  from 
New  Guinea,  and  forming  tlie  connecting  link  between  the  Pacific  and 
Indian  oceans. 

Under  the  authority  of  this  Annexation  Act,  the  Government  of 
Queensland  has  exercised  complete  police  jurisdiction  over  the  Strait, 
has  suppriissed  the  traflic  in  liquor  in  the  objectionable  form  in  which 
it  formerly  prevailed,  and  has  derived  from  the  traffic  as  since  restrict- 
ed, a  large  revenue  througli  the  medium  of  customs  duties.  (43  Vict., 
oh.  1.  Hep.  U.  S.  Fish  Com,  See  *' Gold-Gems  and  Pearls  in  Ceylon 
and  Southern  India,"  by  A.  M.  &  I.,  1888,  p.  290.)  (Case  of  the 
United  States,  App,  Vol,  I,  p.  467.") 

An  effort  is  made  in  the  British  co  jiter  case  to  diminish  the  force  of 
the  various  statutes,  regulations  and  decrees  above  cited,  by  the  sug- 
gestions that  they  only  tako  effect  within  the  municipal  jurisdiction 
of  the  couutried  where  they  are  promulgated,  and  upon  the  citizeus  of 


RIGHT   TO   PROTECT   INTEEEST8   AND   INDUSTRY. 


171 


those  pouiitries  outside  tlio  territorial  limits  of  such  jurisdiction.  In 
their  strictly  legal  character  as  statutes,  this  is  true,  ifo  authority  need 
have  been  i)rodiiced  on  that  point.  But  tlie  distinction  has  already 
been  pointed  out,  which  attends  the  operation  of  such  enactments  for 
such  purposes.  AVitliin  fclie  territory  where  tliey  prevail,  and  upon  ita 
subjects,  they  ;ire  binding  as  statutes,  whether  reasonable  and  neces- 
sary v»r  not.  Without,  they  become  defensive  regulations,  which  if 
they  are  reasonable  and  necessary  for  the  defense  of  a  national  inter- 
est or  right,  will  be  submitted  to  by  other  nations,  and  if  not,  may  be 
e'^forced  by  the  government  at  its  discretion. 

Otherwise  their  '^.fFect  would  be  to  exclude  the  citizens  of  the  coun- 
try in  wliich  they  are  enacted  from  a  uye  of  the  marine  products  it  is 
seeking  to  defend,  which  is  left  open  to  the  inhabitants  of  all  other 
countries,  thus  leaving  those  products  to  be  destroyed,  but  excluding 
their  own  people  from  sharing  in  the  profits  to  be  made  out 
of  the  destruction.  Will  it  be  contended  that  such  is  the  result 
that  is  either  contemplated  or  allowed  to  take  place  by  the  govern- 
ments which  have  found  it  necessary  to  adopt  such  restrictions? 

It  would  be  much  more  to  the  purpose  if  it  could  be  shown  either 
that  any  nation  had  ever  protested  against  or  challenged  th(^  validity 
of  a^ny  of  these  regulations  outside  the  territorial  line,  or  that  any 
individual  had  ever  been  i)ermittcd  to  transgress  there  with  impunity. 
In  the  case  of  any  of  the  statutes  of  Great  Britain  and  her  colonies 
that  have  been  referred  to,  if  any  enterprising  poacher,  armed  with  an 
attorney  and  a  battery  of  authorities  on  the  subject  of  the  extent  of 
statute  jurisdiction,  should  attempt  the  extermination  or  even  the 
injury  of  the  protected  products,  in  defiance  of  the  regulations  pre- 
scribed, he  would  speedily  ascertain,  without  the  assistance  of  an 
international  arbitration,  that  he  had  made  a  mistake,  and  that  to 
succeed  in  his  undertaking  he  would  need  to  be  backed  up  by  a  fleet 
too  strong  for  Great  Britain  to  resist. 

In  the  light  of  this  accumulation  of  authority  and  precedent,  drawn 
from  every  source  through  which  the  sanction  of  international  law  can 
be  derived  or  the  general  assent  of  mankind  expressed,  what  more 
need  be  said  in  elucidation  of  the  grounds  upon  which  this  brancli  of 
the  case  of  the  United  States  reposes  ?  Have  we  not  clearly  established 
the  proposition,  tliat  the  dominion  over  the  sea,  once  maintained  by 
maritime  uaticms,  has  been  surrendered  only  so  far  as  to  permit  such 
private  use  as  is  neither  temporarily  nor  permanently  injurious  to  the 


1i 


w,> 


'I 


J-: 


C.  D I 


m 


■  n: 


ARGUMENT   OF   THE   UNITED   STATES. 

imporrjnit  and  just  interests  oftlio.se  nations,  and  that  as  against  such 
injury,  however  occasioned,  the  right  of  defense  lias  always  been  pre- 
Berved,  and  has  always  l)eeu  asserted  on  the  high  sea,  and  even  ujion 
foreign  territory.  It  will  be  seen,  we  respectfully  submit,  that  this 
case  presents  nothing  new,  except  the  particular  circumstances  of  the 
application  of  an  universal  and  necessary  principle  to  au  exigency  that 
lias  not  arisen  in  this  precise  form  before. 

The  steadfast  advance  which  the  law  of  nations  has  made,  from  the 
days  of  its  rudiments  to  the  present  time,  and  which  still  must  con- 
tinue to  be  made  through  all  time,  has  been  and  must  always  be  by 
the  process  of  analogy,  in  the  a-iiplication  of  fundamenlal  principles, 
from  which  the  rules  of  all  new  cases  as  they  successively  and  con- 
stantly arise  must  be  deduced.  Neither  this  nor  any  other  system  of 
human  law  can  stand  still,  for  it  must  perish  u^nless  it  keeps  pace  with 
the  vicissitudes  of  society,  and  meets  adequately  all  the  new  emer- 
gencies and  requirements  which  they  from  time  to  time  produi^e.  Law 
has  its  roots  in  the  past,  but  its  efficacy  must  take  place  in  the  present. 
Says  Mr.  Phillimoro  (Int.  Law,  vol.  1,  sec.  39):  , 

Analogy  lias  great  influence  in  the  decision  of  international  as  well 
as  municipal  tribunals;  that  is  to  say,  the  application  of  the  principle 
of  a  rule  wlii<!h  has  been  adopted  in  certain  former  cases,  to  govern 
others  of  a  similar  character  as  yet  undetermined. 

Analogy  is  the  instrument  of  the  progress  and  development  of  the 
law.     (liowyer's  Keadings,  p.  88.) 

If  a  precedent  arising  upon  the  same  facta  is  not  forthcoming,  it  is 

only  because  there  is  no  precedent  for  the  conduct  complaiuv -d  of.  Tbo 

same  right  wiis  never  before  invaded  in  the  same  way.    That  does  nou 

take  the  case  out  of  the  operation  of  the  principle  upon  which  all 

precedents  in  analogous  incidents  depend,  and  it  apiilies  with  the  same 

force  to  every  case  that  arises  within  its  scope.  The  particular  precedent 

is  created  Avhen  the  necessity  for  it  appears.    The  absence  of  it  when 

the  necessity  has  never  arisen,  proves  nothing.    The  only  inquiiy  is 

whether  the  case  comes  within  the  general  rule. 


I 


But  were  it  possible  to  regard  the  present  case  as  in  any  respect  out- 
side the  scope  of  rul'is  hitherto  established,  its  determination  would 
then  be  remitted  to  those  broader  considerations  of  moral  right  and 
justice  which  constitute  the  foundation  of  international  law.  It  is  the 
applicaiion  of  those  cardinal  principles  that  must  control  every  case  of 
new  impression  that  caii  arise  between  nations.    The  law  of  nations 


RIGHT    TO    PROTECT    INTERESTS    AND    INDUSTRY. 


173 


has  no  otker  source  than  tliat,  except  in  its  foiivoiitioiialities.  Sir  R. 
Pbilliniore,  in  Queen  v,  Kebu  {supra,  j).  OS),  reniarlis  iu  respect  to  sucb 
a  case : 

Too  riidimental  an  inquiry  must  L<>  avoid',  d,  but  it  must  be  remem- 
bered tbat  tbe  case  is  one  ot'  pt  imw  impn-sfiitinis,  ot  t\w  gitiiit.v»t  hn- 
portauco  botb  to  Enghuid  and  to  otber  states,  and  tlie  cbar.icter  of  it 
in  some  decree  necessitates  a  referen(;e  to  first  principU's.  In  tlio 
memorable  answer  pronounced  by  JVlontesquieu  to  be  rcpome  sans 
repUque,  and  framed  by  Lord  Mansfiekl  and  !Sir  (ieori^e  Leo,  of  tbo 
Britisb,  to  tlie  Prussian  Government:  "Tlie  biw  of  nations  is  said  to 
be  founded  upon  Justice,  ecpiity,  convenience,  and  tlio  reason  of  tbo 
tiling,  and  coniirmed  by  long  usage. 

Cbancellor  Kent  says  (1  Commentaries,  p.  32) «. 

As  tbe  end  of  tbe  biw  of  nations  is  tbe  baitpiness  and  perfection  of 
tbe  general  society  of  mankind,  it  en.joins  upon  every  nation  tbe  jiunc- 
tual observance  of  benevolence  and  gootl  will  ;!s  \V(dl  as  of  justu-e  towards 
its  neigbbors.  Tbis  is  eiiually  tbe  policy  and  tiie  duty  of  nations. 
*  *  *  (p.  181).  Tke  law  of  nations  is  placed  under  tiu^  piotection  of 
public  opinion.  *  *  *  Its  gieat  fundamental  priiu-iples  are  founded 
in  tbe  maxims  of  eternal  trutb,  in  tke  ininintabie  law  of  moral  obliga- 
tion, and  in  tbe  suggestions  of  enligbteued  public  interest.' 

Many  autkorities  on  tkis  point  kave  been  presented  in  a  former 
branch  of  tbis  argument.  They  migkfc  be  multiplied  to  an  indefinite 
extent,  as  well  from  continental  as  from  Englisk  and  American  writers 
and  judges.  But  ai)ology  skould  ratker  be  ottered  for  citing  any 
autkority  at  all,  upon  a  proposition  so  fundamental  and  so  obvious. 

Itiswitk  tke  greates^t  respect  submitted,  and  in  our  judgment  it 

'  Says  Judge  Stocy  (Con.  of  Laws,  nee.  3) :  ~  In  restinjj  on  tlio  basis  of  general 
convenience  and  lih©  enlarged  seust?  irf  national  duty,  rules  have  tVotii  liiue  to  tim« 
been  pronuilgat.ei'  by  Jurists  and  supported  by  (Courts  of  Justice  by  a  corirso  of  Judi- 
cial reasouiiiji  wliieh  hiiH  eoniuiuiided  almost  universal  confidence,  res|)cct,  and  obcdi' 
ence,  wil  lionir,  the  aid  eilhor  oL  municipal Ktiitutos  or  of  royal  ordinances,  or  of  iuLcr- 
nationiil  trtiuties." 

Mr.  Twiss  i  Int.  Law.  part  1,  s«c.  8()\  dividi.s  the  sources  of  law  of  nations  as  follows: 
"The  natural  or  necesHai-y  law  of  nations,  in  whicii  tlie  principles  of  natural  Justico 
are  applied  to  the  intercourse  between  states;  secondly,  custouuiry  law  of  nations 
which  embodies  those  usages  whicli  the  continued  lial)it  of  nations  baa  sanctioned 
lor  their  mutual  intcrcsi  and  C(»nvenieuce,  and  thirdly,  the  CDnvtiilioiiul  or  diplomalio 
law  of  nations.  *  *  *  Under  this  last  head  many  regulations  will  now  bo  found 
which  at  iirst  resulted  from  custom  or  a  general  sense  of  Justit;e.'' 

Mr.  Aiuos,  in  his  note  to  Manning  (book  2,  chap.  1,  p.  85)  remarks:  "Though 
the  customary  usages  of  states  in  their  luuiual  inttsrcourse  must  always  be  held  to 
aft'ord  evith'nco  of  impliiMl  jussent,  and  to  continue  to  be  a-  me>ii  basis  of  a  structure 
of  the  luw  of  nations,  yet  there  are  several  circumstances  ia  modern  society  which 
nocm  to  indicate  that  the  re^fion  of  the  inlluenco  will  become  increasingly  restricted 
as  compared  with  that  of  tlio  iulliuiuoo  of  wcU-ascortamod  ethical  pi'iuciplos  and 
iormal  couveiiliou." 


•  h'' 


174 


ARGUMENT   OF    THE    UNITED    STATES. 


cau  not  be  too  clearly  kept  in  view,  that  the  duty  requested  of  this  High 
Tribunal  is  not  the  discussion  of  abstract  theories,  nor  the  establish- 
ment of  propositions  applicable  to  cases  not  before  it,  nor  the  determi- 
nation of  diplomatic  controversies  that  liave  longceased  to  be  material 
The  question,  and  the  only  question  to  be  decided,  is  whether  tiie  own- 
ers of  the  Canadian  vessels  engaged  in  the  destruction  of  tlie  seals  in 
Bering  Sea,  have  an  indefeasible  right  as  against  the  Government  of 
the  United  States,  upon  the  circumstances  of  this  case,  to  continue  such 
destruction,  at  the  times,  in  the  places,  in  the  manner,  and  with  the 
consequences  shown  by  the  evidence.  That  question  is  neither  tech- 
nical nor  scholastic,  nor  does  it  depend  upon  finespun  reasoning  or  rec. 
ondite  learning.  It  is  to  be  regarded  in  the  large  and  fair-minded 
view  which  accords  with  the  dignity  of  the  parties  to  this  controversy, 
the  character  of  the  Tribunal  to  which  they  have  submitted  it,  and  a 
just  deference  to  that  opinion  of  civilized  mankind  which  is  the  nlti- 
n?ate  criterion  of  international  law,  and  the  final  arbitrator  in  all  inter- 
national disputes.  Surveyed  in  this  light,  upon  its  just  and  actual 
facts,  and  looking  at  it  as  it  stands  apparent  to  the  world,  what  are  its 
proposals,  when  fairly  and  simply  stated?  Let  the  leading  facts  before 
stated,  be  recapitulated. 

Here  is  a  lierd  of  amphibious  animals,  half  human  in  their  intelli- 
gence, valuable  to  mankind,  almost  the  last  of  their  species,  whi<;h  from 
time  immemorial  have  established  tlieir  home  with  a  constant  animus 
revertendi  »m  islands  once  so  remote  from  the  footsteps  of  man.  that  these, 
their  only  denizens,  might  reasonably  have  been  expected  to  be  per- 
mitted to  exist,  and  to  continue  the  usefulness  for  which  the  benefi- 
cence of  the  Creator  designed  tliem.  Upon  these  islands  their  young 
are  begott<in,  brought  forth,  nurtured  during  the  early  months  of  their 
lives,  the  land  being  absolutt^ly  necessary  to  these  processes,  and  no 
other  land  having  ever  been  sought  by  them,  if  any  other  is  in  fact 
available,  which  is  gra\  ely  to  be  doubted. 

The  Russian  and  United  States  Governments,  successively  proprie- 
tors of  the  islands,  have  by  wise  and  careful  supervision  cherished  and 
protected  this  herd,  and  have  built  n\}  from  its  product  a  permanent 
bosiness  and  industry  valuable  to  tliemselves  and  to  the  world,  and  a 
large  source  of  public  revenue,  and  which  at  the  same  tiine  preserves  the 
animals  from  extinction,  or  trom  any  interfere»tce  inconsistent  with  the 
dictates  of  humanity. 

It  la  now  proposed  by  individual  citizens  of  anoth**-  country,  to  lie 


RIGHT    TO    PROTECT    INTERESTS    AND    INDUSTRY, 


175 


in  wait  for  these  animals  on  the  adjacent  sea  during  the  season  of  re- 
production, and  to  destroy  the  piej;nant  females  on  their  way  to  the 
islands,  tlie  nursing  motliers  after  delivery  while  temporarily  off 
the  islands  in  pursuit  of  food,  and  thereby  the  young  left  there  to 
starve  after  the  mothers  have  been  slaughtered;  the  unavoidable  re- 
sult being  the  extermination  of  the  whole  race,  and  the  destruction  of 
the  valuable  interests  therein  of  the  XJjiited  States  Government  and  of 
mankind;  and  tlie  only  object  being  tlie  small,  uncertain,  and  temporary 
profits  to  be  derived  while  the  process  of  destruction  lasts,  by  the  indi- 
viduals concerned. 

And  it  is  this  conduct,  inhuman  and  barbarous  beyond  the  power  of 
description,  criminal  by  the  laws  of  the  United  States  and  of  every 
civilized  country  so  far  as  its  municipal  jurisdiction  extends,  m  respect 
to  any  wild  animal  useful  to  man  or  even  ministering  to  his  harmless 
pleasure,  that  is  insisted  !ipon  as  a  part  of  the  sacred  right  of  the  freedom 
of  the  sea,  which  no  n;*tiH»n  can  repi'eas  or  defend  against,  whatever  its 
necessity.  Can  anything  be  added  to  the  statement  of  this  proposition 
that  is  necessary  to  its  refutation? 

What  precedent  for  it,  ever  tolerated  by  any  nation  of  the  earth,  is 
produced?  From  what  writer,  judge,  jurist,  or  treaty  is  authority  to 
be  derived  for  the  assertion  that  the  high  sea  is  or  ever  has  been  free 
for  such  conduct  as  this,  or  that  any  such  construction  was  ever  before 
given  to  the  term  ''freedom  of  the  sea"  as  to  ihrow  it  open  to  the 
destruction,  for  the  profit  of  individuals,  of  valuable  national  interests 
of  any  description  whatever?  Let  those  who  claim  to  setup  such  a 
right  as  justifi^  by  any  known  law  of  nations,  produce  the  authority 
or  the  precedent  to  establish  it. 

If  this  proposal  were  submitted  to  the  enlightened  judgment  of  man- 
kind, if  the  question  of  its  acccp  ice  were  made  to  depend  upon  those 
considerations ofjustice,  moral : i .» ,  liumanity,  benevolence,  and  fair  deal- 
ing that,  as  we  have  seen,  u>vm  the  groundwork  of  internationol  law, 
and  of  all  usages  under  it  that  have  become  established,  it  can  not  be 
open  to  doubt  what  the  answer  t^j  it  mtist  bo.  There  can  be  but  one 
side  to  such  an  incpiiry,  if  ideas  of  right  and  wrong,  or  even  of  sound 
policy,  are  to  prevail.  To  escape  that  result,  some  arbitrary  and  inllex- 
ible  rule  of  controlling  law  must  be  dincovered,  against  which  justice, 
morality,  and  fair  dealing  are  powerless.  We  deny  that  any  such  rule 
forms  a  part,  or  can  ever  bo  permitted  to  form  a  part,  of  any  recognized 
system  of  international  law. 


.i:' 


176 


ARGUMENT   OF   THE    UNITED   STATES. 


If 


5  ' 


Many  cases  may  bo  supposed,  each  of  which,  sliould  it  arise,  would 
be  in  its  paiticuhir  facts  a  new  case,  in  ilhistration  of  the  proposition 
for  which  we  contend.  Suppose  that  some  method  of  explosive  destruc- 
tion should  be  discovered  by  which  vessels  on  the  seas  adjacent  to  tlie 
Newfoundland  coast  outside  of  tlie  jurisdictional  line  could,  with  prottt 
to  themselves,  destroy  all  the  fish  that  resort  to  those  coasts,  and  so  put 
an  end  to  the  whole  tishing  industry  upon  which  their  inhabitants  so 
largely  depend.  Would  this  be  a  business  that  would  be  held  justifi- 
able as  a  part  of  the  freedom  of  the  sea?  although  the  lish  are  ad- 
mitted to  be  purely  ferce  naturcv,  and  the  general  right  of  Ashing  in 
the  open  sea  outside  of  certain  limits  is  not  denied. 

An  Atlantic  cable  has  been  laid  between  America  and  Great  Britain, 
the  operation  of  which  is  important  to  those  countries  and  to  the  world. 
Suppose  some  method  of  deep-sea  fishing  or  marine  exploration  should 
be  invented,  profitable  to  those  engaged  in  it,  but  which  should  inter- 
rupt the  operation  of  th'^  cable  and  perhaps  endanger  its  existence. 
Would  those  nations  be  ^  werless  to  defend  themselves  against  such 
consequences,  because  the  act  is  perpetrated  upon  the  high  sea? 

Suppose  vessels  belonging  to  citizens  of  one  country  to  be  engaged 
in  transporting  for  hire  across  tlie  sea  to  ports  of  another,  emigrants 
from  plague-stricken  and  infected  places,  thus  carrying  into  those  ports 
a  destructive  contagion.  If  it  should  be  found  that  measures  of  de- 
fense inside  of  the  three-mile  or  cannon-shot  lines  were  totally  inade- 
quate and  ineffectual,  would  the  nation  thus  assailed  be  deprived  of 
the  iK)wer  of  defending  itself  against  the  approach  of  such  vessels,  as 
far  outside  that  line  as  the  actual  necessity  of  the  case  might  require? 
This  question  is  answered  by  the  acts  of  the  British  Parliament  before 
referred  to,  api)licable  to  just  such  a  case. 

If  a  light-house  were  erected  by  a  nation  in  waters  outside  of  the  3- 
mile  line,  for  the  benefit  of  its  own  commerce  and  that  of  the  world,  if 
some  pursuit  for  gain  on  the  adjacent  high  sea  should  be  discovered 
which  would  obscure  the  light  or  endanger  the  light-house  or  the  lives 
of  its  inmates,  would  that  government  be  defenseless?  Lord  Chief  Jus- 
tice Oockburn  answers  this  inquiry  in  the  case  of  Queen  v.  Kohn  above 
cited  (p.  198)  when  he  declares  that  such  encroachments  upon  the  high 
sea  would  form  a  part  of  the  defense  of  a  country,  and  "  come  Avithin 
the  principle  that  a  nation  may  do  what  is  necessary  for  the  protection 
of  its  own  territory." 

lu  any  of  these  cases,  would  it  be  necessary  for  the  nation  assailed 


RIGHT   TO    PROTECT    INTERESTS    AND    INDUSTRY. 


177 


to  wsnpplicate  the  government  to  which  its  assailaiils  belonged,  to  i^re- 
vent  the  mischief  comphiined  of,  as  a  matter  of  vohintary  comity,  and 
if  such  application  were  disregarded,  to  submit?  Tlio  wliole  history 
of  the  maritime  world,  and  of  Great  Britain  above  all  other  countries 
is  to  the  contrary.  So  fav  from  individual  rights  on  the  sea  of  such  a 
mischievous  and  injurious  character  having  become  recognized  and  es- 
tablished by  the  assent  of  mankind,  so  as  to  be  regarded  as  justilied 
by  the  intenuitional  law  that  results  from  such  an  assent,  the  judgment 
and  the  conduct  of  nations  have  been  altogether  the  other  way,  and 
necessarily  must  always  be  the  other  way  if  they  are  to  protect  them- 
selves, their  interests,  and  their  people  from  destruction. 

It  will  be  seen  from  the  correspondence  between  the  governments  of 
Great  Britain  and  the  United  States,  printed  in  the  Appendix  to  the 
Case  of  the  United  States,  that  a  convention  between  the  two  countries 
was  virtually  agreed  upon  as  early  as  1887,  with  the  full  c(mcurrenc&  j( 
Russia,  under  which  pelagic  sealing  in  Behring  Sea  would  have  been 
prohibited  between  April  15  and  October  1  or  Noveu;ber  1  in  each  year, 
and  that  the  consummation  of  this  agreement  was  only  prevented  by  the 
refusal  of  the  Canadian  Government  to  assent  to  it.  The  proi)riety  and 
necessity  of  such  a  repression  was  not  doubted,  either  by  the  United 
States,  Great  Britain,  or  liussia.  This  convention,  if  completed,  would 
have  fallen  far  short  both  of  thejust  right  and  the  necessity  of  the  United 
States  in  respect  to  the  protection  of  the  seals,  as  is  now  made  apparent 
in  the  light  of  the  much  larger  knowledge  of  the  subject  which  has 
since  been  obtained.  Still,  it  would  have  been  a  step  toward  the  do- 
sired  end. 

When  it  became  apparent  that  Great  Britain  would  be  unable  to 
consumTiuite  the  proposed  agreement,  and  that  no  restraint  would  be 
put  by  nor  Majesty's  Government  on  the  depredations  of  its  colonists 
complained  of,  if  the  United  States  Government  had  then  taken  the 
course  which  has  since  been  pursued  by  the  Government  of  Eussia 
in  respect  to  the  seals  on  the  Commander  Islands,  and  refused  to  per- 
mit farther  slaughter  of  the  seals  in  Bering  Sea  during  the  breeding 
time,  what  is  it  reasonable  to  believe  would  have  been  the  judgment  of 
the  civilized  ivorld,  as  to  the  justice  and  propriety  of  the  position  thus 
assumed?  Would  not  such  action  have  been  approved  and  acquiesced 
in  by  all  nations,  as  it  has  been  shown  that  similar  action  by  many 
t'ountries  in  all  similar  cases  that  have  arisen  has  been  approved  and 

uc(juiosced  in?    And  if  jt  cau  bg  su^j)Oi>ed,  as  it  certuiulj^  cau  Jiot  b© 
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178 


ARGUMENT   OF   THE    UNITED    STATES. 


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I  I 


supposed  without  castinjj;  an  unwarrantable  aspersion  upon  Her  Maj- 
esty's Government,  that  Great  Britain  would  have  undertaken  to  main- 
tain by  naval  force  the  Canadian  vessels  in  the  conduct  in  question, 
how  far  is  it  to  be  believed  that  she  would  been  sustained  by  the  gen- 
eral opinion  of  the  world?  More  especially  in  view  of  the  claim  she 
has  always  successfully  and  justly  asserted,  of  the  right  to  protect  all 
interests  of  her  own  against  injury  by  individuals  on  the  high  sea  for 
the  sake  of  gain. 

And  iiiuilly,  if  by  the  concurrent  action  of  the  United  States,  Great 
Britain,  and  Eussia,  a  prohibition  of  pelagic  sealing  during  the  breeding 
time  had  been  eflected,  as  proposed,  would  those  three  powers  combined 
have  had  a  better  right  to  exclude  any  casual  poacher  under  the  flag  of 
some  other  government  from  the  depredations  i)rohibited,  than  the  Uni- 
ted States  now  has,  standing  alone?  Or  would  they  have  been  con- 
strained, by  the  requirements  of  what  is  called  international  law,  to  oc- 
cupy the  humiliating  position  of  standing  idly  by,  while  the  interests 
they  had  found  it  necessary  to  unite  in  protecting,  should  be  deliber- 
ately destroyed  for  the  benefit  of  a  few  adventurers,  whose  methods 
defied  law  and  disgraced  humanity. 

What  the  United  States  Government  would  have  been  justified  in 
doing  in  self-defense,  by  the  exertion  of  such  reasonable  force  as  might 
be  necessary,  is  precisely  what  she  has  aright  to  ask  in  the  judgment 
of  this  Tribunal.  There  can  not  be  one  system  of  international  law  for 
the  world  and  another  for  the  closet,  because  the  closet  does  not  pre- 
scribe the  law  of  nations;  it  derives  it  from  those  principles  of  right 
and  justice  which  are  adopted  as  a  rule  of  action  by  the  general  assent 
and  approval  of  mankind. 

Instead  of  taking  its  defence  into  its  own  hands,  the  Government  of 
the  United  States  has  refrained  from  the  exercise  of  that  right,  has 
submitted  itself  to  the  judgment  of  this  Tribunal,  and  has  agreed  to 
abide  the  result.  Its  controversy  is  only  nominally  with  Great  Britain, 
whose  sentiment  and  whose  interest  concur  in  this  matter  with  those 
of  the  United  States.  It  is  really  with  a  province  of  Great  Britain, 
not  amenable  to  her  control,  with  which  the  United  States  Govern- 
ment has  no  diplomatic  relations,  and  can  not  deal  independently. 
Although  the  erroneous  assumption  that  the  United  States  claimed 
the  right  to  make  Bering  Sea  a  7nare  dausuni,  has  undoubtedly  drawn 
Her  Majesty's  Government  into  a  position  in  this  dispute  that  it 
might  uot  otherwise  have  taken. 


RIGHT   TO   PROTECT    INTEREST   AND   INDUSTRY. 


179 


If  by  the  judgment  of  this  hijjh  and  distinguished  Tribunal  the 
Alaskan  seal  herd  is  sentenced  to  be  exterminated,  a  result  which  the 
United  States  Government  has  been  unable  to  anticipate,  it  must  sub- 
mit, because  it  has  so  agreed.  But  it  will  not  the  less  regret  having  thus 
bartered  away  that  plain  right  of  self-defense  against  unwarranted 
injury,  which  no  nation  strou^i"  euou^jh  to  assort  itself  has  ever  surren- 
dered before. 

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180 


ARGUMENT  OF   THE   UNITED   SiyiTES. 


APPENDIX  TO  PART  THTRT),  DIVISION  II  (MR.  PHELPS'S 

ARGUMENT). 


ADDITIONAL  AUTHORITIES  ON  THE  QUESTION   ON  PROPERTY. 


[NOTB  1,  FAGK  132. 


OPINION    IN  BANNAM   VS.  MOCKETT. 
WELL,  943.)] 


(2    BAltNWALL    AND  CKK8- 


Bagley,  J.  A  man's  rights  are  the  rights  of  personal  security,  per- 
sona} liberty,  and  private  property.  Private  property  is  either  proi  erty 
in  possession,  property  in  action,  or  property  that  an  individual  hi?s  a 
special  right  to  acquire.  The  injury  in  this  case  does  not  affect  any 
right  of  personal  security  or  person.al  liberty,  nor  any  property  in  pos- 
sessioi\  or  in  action,  and  the  question  then  is  whether  there  is  any 
injury  to  any  property  the  plaintiff*  had  a  special  right  to  aciiuire. 

A  man  in  trade  has  a  right  in  his  fair  chances  of  profit,  and  he  gives 
up  time  and  capital  to  ac(iuire  it.  It  is  for  the  good  of  the  public  that 
he  should.  But,  has  it  ever  been  held  that  a  man  has  a  right  in  the 
chance  of  obtaining  animals  ferce  nature,  where  lie  is  at  no  expense  in 
enticing  them  to  his  premises,  and  where  it  may  be  at  least  question- 
able whether  they  will  be  of  any  service  to  him,  and  whether,  indeed, 
they  will  not  be  a  miisance  to  the  neighborhood?  This  is  not  a  claim 
propter  impotentiam  because  they  are  young,  proj)ter  tiolum  because  they 
are  on  the  plaintift"'8  land,  or  propter  inditntriam  beciiuse  the  plaintiff" 
has  brought  them  to  the  place  or  re(;laimed  them,  but  propter  usum  et 
consuetudinem  of  the  birds. 

They,  of  their  own  choice,  and  without  any  expenditure  or  trouble 
on  his  part,  have  a  predilection  for  his  trees,  and  are  disjjosod  lo  resort 
to  them.  But,  has  he  a  legal  right  to  insist  that  they  shall  be  i»ermitted 
to  do  so?  Allow  the  right  as  to  these  birds,  and  how  I'an  it  be  denied 
as  to  all  6ther8!  In  considering  a  claim  of  this  kind  the  nature  and 
properties  of  the  birds  are  not  immaterial.  Tlu^  law  makes  a  distinc- 
tion between  animsvls  fitted  for  food  and  those  which  are  not;  between 
those  which  are  destructive  of  private  pr(>])erty  and  thost!  which  are 
not;  between  those  which  have  receive'^  protection  by  common  law  or 
by  statute  and  those  which  have  not. 

Itis  notallegedin  this  declaration  that  these  rooks  were  lit  for  food ;  and 
we  know  in  fact  that  they  are  not  generally  so  used.  So  fur  froni  being 
protected  by  law,  they  have  been  looked  upon  by  tlie  legislature  as  de- 
structive in  their  nature,  and  as  nuisances  to  the  neighborliood  where 
they  are  established.  Keeble  vh.  Hickeringili  (11  East.,  574)  bears  a 
stronger  resemblance  to  the  present  than  any  other  case,  but  it  is  dis- 
tinguishable. •  •  *  But  in  the  first  place,  it  is  observable  that  wild 
fowl  are  protected  by  the  statute  25  II.  8,  c.  11;  that  they  constitute 
a  known  article  of  food ;  and  that  a  person  keeping  uj)  a  decoy  expends 
money  and  emph>ys  skill  in  taking  that  which  is  of  use  to  the  public. 

It  is  a  profitable  mode  of  employing  his  laud,  and  was  considered  by 
Lord  Bolt  oa  a  desoriptiou  oi  trade,   TUat  case,  tUeiefore,  staudfl  ou  » 


APPENDIX   TO   PART   THIRD — DIVISION   11. 


181 


different  foundation  troin  this.  All  the  other  instances  which  were 
referred  to  in  the  arfriiment  on  the  part  of  the  plaintiff  are  «'ast'S  of  ani- 
mals specially  protected  by  a(rt^^  of  I'arlianient,  or  which  are  clearly  the 
subjects  of  pro[>erty.  Thus  hawks,  falcons,  swans,  partridjres,  i)iica8- 
ants,  pijfeons,  wild  ducks,  mallards,  teals,  widgeons,  wild  geese,  black 
game,  red  game,  bustards,  and  herons  are  all  recogni/ed  by  different 
statutes  as  entitled  to  protection,  and  consequently  iu  the  eye  of  the 
law  are  tit  to  be  preserved. 

[KERni.R  vs.  IflCKRKINaiLL.      IIILAIIY  TKIIM  5  ANNK,  HOLT'S  nKPORTS,  p.  17.] 

Action  by  owner  of  a  decoy  pond,  frecpuMitod  by  wild  fowl,  against 
one  who  shot  off  a  gun  near  his  pond  to  th(5  ])laintilf's  htss,  etc. 

During  the  course  of  the  discussion  by  the  judges,  Holt,  0.  J.,  said: 
♦  •  •  "And  the  decoys  spoil  gentlemen's  game,  yet  they  are  not 
unlawful,  for  they  bring  money  into  the  country.  Dove  cotes  are  law- 
ful to  keep  pigeons. 

Powell:  The  d(!claration  is  not  good,  but  this  being  a  special  a(!tion 
on  the  case,  it  is  helped  by  the  verdict.  If  you  frigliten  pigeons  from 
my  dove  cote,  is  not  that  actionable? 

Montague:  Yes,  for  they  have  animum  revertendi,  and  therefore  you 
have  property. 

In  Vol.  II,  East's  Reports,  ]>.  571,  is  the  case  of  Canington  vs.  Tay- 
lor, which  is  also  a  case  upon  the  subject  of  injury  to  the  owner  of  a 
decoy  i)oud.  The  reporter,  iu  a  note  to  this  case,  reports  at  length 
Keeble  vs.  llickeringill,  which  he  stales  "is  taken  from  a  copy  of  Lord 
C.  J.  Holt's  own  MSS.  in  my  possession." 

In  this  report  it  is  said :  "  Holt,  C.  J.  I  am  of  opinion  that  this  action 
doth  lie.  It  seems  to  be  new  in  its  instance,  but  it  is  not  new  in  the 
leason  or  principle  of  it.  •  •  *  An«l  we  do  know  that  of  long  time 
in  the  kingdom  these  artittcial  c(mtrivances  of  decoy  ponds  and  decoy 
ducks  have  been  used  for  enticing  into  those  ponds  wild  fowl,  in  order 
to  be  taken  for  the  protit  of  the  owner  of  the  i)ond,  who  is  at  the  ex- 
pense of  servants,  engines,  and  other  management,  whereby  the  mar- 
kets of  the  nation  nniy  be  furnished;  there  is  great  reason  to  give 
encouragement  thereunto;  that  the  jjcople  who  are  so  instrumental  by 
their  skill  and  industry  so  to  furnish  the  markets  should  reap  the  ben- 
efit and  have  their  action. 


[NOTE  1,   (PAGE  149). 


KXTKACT    KUOM     OPINION   OF    CHIEF    JUSTICE    MAKSIIALI.    IN 
CliUUCH  VB.  IIUltliAKT,  2  CU.,  187.] 


That  the  law  of  nations  prohibits  the  exercise  of  any  act  of  author- 
ity over  a  vessel  in  the  situation  of  the  Aurora,  and  tliat  this  seizure 
is,  on  that  account,  a  mere  maritime  trespass  not  within  the  exception, 
cannot  be  adnntted.  To  reason  from  the  extent  of  the  protection  a  nation 
will  afford  to  foreigners,  to  the  extent  of  the  means  it  may  use  tor  its  own 
security,  does  not  seem  to  be  perfectly  correct.  It  is  opposed  by  prin- 
ciples which  are  universally  acknowledged.  The  authority  of  a  nation 
within  its  own  territory  is  abstdute  and  exclusive.  The  seizure  of  a 
vessel  within  the  range  of  its  cannon  by  a  foreign  force  is  an  invasion 
of  that  territory,  and  is  a  hostile  act  which  it  is  its  duty  to  repel.  But 
Its  power  to  secure  Itself  fnun  injury  nuiy  certainly  be  exercised  beyond 
tl'c  limits  of  its  territory. 

Upon  this  principle,  the  right  of  a  belligerent  to  search  a  neutral 
vessel  ou  the  high  seas  fur  cuutrabaud  of  war  is  universally  admitted. 


w 

■•'•i 


'<! 


,'  u 


mm 


^  ■■[■>.  !•' 


182 


ARGUMENT  OP  THE  UNITED   STATES. 


because  tlie  belligerent  has  a  right  to  prevent  the  injury  done  to  him- 
self by  the  assiHtance  intended  for  lis  enemy.  So,  too,  a  nation  has  a 
right  to  prohibit  any  commerce  with  its  colonies.  Any  attempt  to 
violate  the  laws  made  to  protect  this  right  is  an  injury  to  itself  which 
it  may  prevent,  and  it  has  a  right  to  use  the  means  necessary  for  its 
prevention.  These  means  do  not  appear  to  be  limited  within  any  cer- 
tain marked  boundaries,  which  remain  the  same  at  all  tiiiies  and  in  all 
situations.  If  they  are  such  as  unnecessarily  to  vex  and  harass  foreign 
lawiul  commerce,  foreign  nations  will  resist  their  exercise.  If  they  are 
such  as  are  reasonable  and  necessary  to  secure  their  laws  from  violation, 
they  will  be  submitted  to. 

In  different  seas  and  on  different  coasts  a  .t^ider  or  more  contracted 
range  in  which  to  exercise  the  vigilance  of  the  Government  will  be  as- 
sented to.  Thus  in  the  Channel,  where  a  very  great  part  of  the  com- 
merce to  and  from  all  the  north  of  Europe  i)as8es  through  a  very  nar- 
row sea,  the  seizure  of  vessels  on  suspicion  of  attempting  an  illicit 
trade  must  necessarily  be  restricted  to  very  narrow  limits;  but  on  the 
coast  of  South  America,  seldom  frequented  by  vessels  but  for  the  pur- 
pose of  illicit  trade,  the  vigilance  of  the  Government  may  be  extended 
somewhat  further,  and  foreign  nations  submit  to  such  regulations  as 
are  rea  lonable  in  themselves  and  are  really  necessary  to  secure  that 
monopoly  of  coUmial  commerce,  Avhich  is  claimed  by  all  nations  holding 
distant  possessions. 

If  this  right  be  extended  too  far,  the  exercise  of  it  will  be  resisted. 
It  has  occasioned  long  and  frequent  contests  which  have  sometimes 
ended  in  open  war.  The  English,  it  will  be  well  recollected,  complained 
of  the  right  claimed  by  Spain  to  search  their  vessels  on  the  high  seas, 
which  was  carried  so  far  that  the  (iuarda  Costas  of  that  nation  seized 
vessels  not  in  the  neighborhood  of  their  coasts.  This  practice  was  the 
subject  of  long  and  fruitless  negotiations,  and  at  length  of  open  war. 
The  right  of  the  Spaniard?  was  supposed  to  be  exercised  unreasonably 
and  vexatiously,  but  it  nevor  was  contended  that  it  could  only  be  ex- 
ercised within  the  range  of  the  cannon  from  their  batteries. 

Indeed,  the  right  given  to  our  own  revenue  cutters  to  visit  vessels 
four  leagues  from  our  coasts  is  a  declaration  that  in  the  ojunion  of  the 
American  Government  no  such  principle  as  that  contended  for  has  a 
real  existence.  Nothing,  then,  is  to  be  drawn  from  the  laws  of  the 
usages  of  nations,  which  gives  to  this  part  of  the  contract  before  the 
court  the  very  limited  construction  which  the  plaintiff  insists  on,  or 
which  proves  that  the  seizure  of  the  Aurora  by  the  Portuguese  gov- 
ernor was  an  act  of  lawless  violence. 


w 


■i 


(mote  1,  PACK  150.      OPINION  OK  JUDGK  JOHNSON  IN  ROSE  VS.    HIMELY,  4  CR.  241.] 

I  am  of  opinion  that  the  evidence  before  us  plainly  makes  out  a  case 
of  belligerent  capture,  and  though  not  so,  that  the  capture  may  be 
justified,  although  for  the  breach  of  a  municipal  law.  In  support  of 
my  latter  position,  both  principle  and  the  practice  of  Great  Britain  and 
our  own  Government  may  be  appealed  to.  The  ocean  is  the  common 
jurisdiction  of  all  sovereign  powers;  from  which  it  does  not  result  that 
their  powers  upon  the  ocean  exist  in  a  stale  of  suspension  oi  equipoise, 
but  that  every  power  is  at  liberty  upon  the  ocean  to  exercise  its  sov- 
ereign right,  provided  it  does  not  act  inconsistent  with  that  general 
equality  of  nations  which  exists  upon  the  ocean. 

The  seizure  of  a  ship  upon  the  high  aeas,  after  she  has  committed  an 
act  of  forfeiture  within  a  territory,  is  not  inconsistent  with  the  sover- 


Pid 

after 
great 

poiutl 


APPENDIX  TO  PART  THIRD — DIVISION  11. 


183 


eign  rights  of  the  nation  to  which  she  belongs,  because  it  is  the  law  of 
reason  and  the  general  understiinding  of  nations  that  the  offending 
individual  forfeits  liis  claim  to  i)rotection,  and  every  nation  is  the  legal 
avenger  of  its  own  wrongs.  Within  their  juiisdictional  limits  the  rights 
of  sovereignty  are  exclusive ;  upon  the  ocean  they  are  concurrent.  What- 
ever the  great  p)  inciple  of  self  defense  in  its  reasonable  and  necessary 
exercise  will  sanction  in  an  individual  in  a  state  of  nature,  nations  may 
lawfully  perfoi  m  upon  the  ocean.  This  principle,  as  well  as  most  others, 
Uiay  be  cairied  to  an  unreasonable  extent;  it  may  be  made  the  pretence 
instead  of  the  real  ground  of  aggression,  and  then  it  will  become  a  just 
cause  of  war.    I  contend  only  ibr  its  reasonable  exercise. 

The  act  of  Great  Britain  of  24  Geo.,  3,  Chap.  47,  is  predicated  upon 
these  principles.  It  subjects  vessels  to  seizure  which  approach  with 
certain  cargoes  on  board  within  the  distance  of  four  leagues  of  her 
coast,  because  it  would  be  difficult,  if  not  impossible,  to  execute  her 
trade  laws  if  they  were  suffered  to  approach  nearer  in  the  prosecution 
of  an  illicit  design ;  but  if  they  have  been  within  that  distance,  they 
are  afterwards  subject  to  be  seized  on  the  high  seas.  They  have  then 
violated  her  laws,  and  hjive  forfeited  the  protection  of  their  sovereign. 
The  laws  of  the  United  States  upon  the  subject  of  trade  appear  to  have 
been  framed  in  some  measure  alter  the  model  of  the  English  statutes; 
and  the  twenty-ninth  section  of  the  act  of  1799  expressly  authorizes 
the  seizure  of  a  vessel  that  has  within  the  jurisdiction  of  the  United 
States  committed  an  act  of  forfeiture,  wherever  she  may  be  met  with 
by  a  revenue  cutter,  without  limiting  tlie  distance  fi'om  the  coast. 

Se  also  the  act  of  1806,  for  prohibiting  the  importation  of  sljvves, 
authorizes  a  seizure  beyond  our  jurisdictional  limits,  if  the  vessel  be 
found  with  slaves  on  board,  hovering  on  the  coast;  a  latitude  of  expres- 
sion that  can  only  be  limited  by  circumstances,  and  the  discretion  of 
a  court,  and  in  case  of  fresh  pursuit  would  be  actually  without  limita- 
tion. Indeed,  after  passing  the  jurisdictional  limits  of  a  State,  a  ves- 
sel is  as  much  on  the  high  seas  as  if  in  the  middle  of  the  ocean,  and  if 
France  could  authorize  a  seizure  at  the  distance  of  2  leagues,  she  could 
at  the  distance  of  20.  •  •  *  Seizure  on  the  high  seas  for  a  breach 
of  the  right  of  blockade  during  the  whole  return  voyage,  is  universally 
acquiesced  in  as  reasonable  exercise  of  sovereign  i)ower.  The  princi- 
ple of  blockade  has,  indeed,  in  modern  times,  been  pushed  to  such  an 
extravagant  extent  as  to  become  a  very  justifiable  cause  of  war,  but 
still  it  is  admitted  to  be  consistent  with  the  law  of  nations  when  con- 
fined within  the  limits  of  reason  and  necessity. 


[NOTR  1  (PAQB  152). 


CITATIONS  FROM  CONTINENTAL  WU1TER8  ON  TUK  SUBJECT  OF 
SKLP  DBFKN8K.] 


Every  nation  may  appropriate  things,  the  use  of  which,  if  left  free 
and  common,  would  be  greatly  to  its  prejudice.  This  is  another  rea- 
son why  maritime  powers  may  extend  their  domain  along  the  seacoast, 
as  far  as  it  is  possible,  to  defend  their  rights.  •  •  •  It  is  essential 
to  their  security  and  the  welfare  of  their  dominions.  (Azuui,  Part  I, 
Chap.  II,  Art.  i.  Sec.  4,  page  185.) 

Plocque  (De  la  Mer  et  de  la  Navigation  Maritime,  ch.  i,  pp.  6-8), 
after  discmssing  the  limits  of  the  territorial  sea,  and  pointing  out  the 
great  divergence  of  oj)inion  that  had  existed  on  that  point,  remarks: 

"  Moreover,  in  cuf  tom-house  matters,  a  nation  can  fix  at  will  the 
point  where  its  territorial  sea  ends;  the  neighboring  nations  are  sup- 


r*' 


^.&i 


f/  8 


■  1'  ■!•!; 


. 


184 


ARGUMENT  OP  THE   UNITED   STATES. 


posed  to  be  acquainted  witli  these  regulations,  and  aro,  consequently, 
obliged  to  conform  therett).  As  an  example,  we  will  content  ourselves 
with  quoting  the  law  of  Germinal  4th,  year  II,  Art.  7,  Tit.  2:  *  Captains 
and  officers  and  other  functionaries  directing  the  custom-house,  or  the 
commerciul  or  naval  service,  may  search  all  vessels  of  less  than  1(H) 
tons  burden  when  lying  at  anchor  or  tacking  within  four  leagues  from 
the  coast  of  France,  cases  of  vis  major  excepted.  If  such  vessels  have 
on  board  any  goods  whose  importation  or  exportation  is  prohibited  in 
France,  the  vessels  shall  be  confiscated  as  well  as  their  cargoes,  and  the 
captains  of  the  vessels  shall  be  required  to  pay  a  fine  of  500  livres.'" 

SayS  Pradier-Fod6r6  (Trait6  de  Droit  Internationale,  Vol.  ii,  sec.  633) : 

"  Independently  of  treaties,  the  law  of  each  state  can  determine  of  its 
own  accord  a  certain  distance  on  the  sea,  within  whi<-.h  the  state  can 
claim  to  exercise  power  and  jurisdiction,  and  which  constitutes  the  ter- 
ritorial sea,  for  it  and  for  those  who  admit  the  limitation.  This  is  espe- 
cially for  the  surveillance  and  control  of  revenues." 

And  in  a  note  to  this  passage  he  says: 

'<  In  efiect,  in  the  matter  of  revenue,  a  nation  can  fix  its  own  limits, 
notwithstanding  the  termination  of  the  territorial  sea.  Neighboring 
nations  are  held  to  recognize  these  rules,  and  in  conseifnence  are  con- 
sidered to  conform  to  tliem.  On  this  point  the  French  law  of  the 
4th  Germinal,  year  II,  can  be  cited." 

This  law  fixes  two  myriameters,  or  about  twelve  English  miles  as  the 
limit  within  which  vessels  are  subject  to  inspection  to  prevent  fraud  on 
the  revenue. 

La  Tour  (De  la  mer  territoriale,  page  230),  speaking  of  the  exterri- 
torial etfect  of  the  French  revenue  laws  at  four  leagues  from  the  coast, 
thus  justifies  them. 

"  Is  not  this  an  excessive  limit  to  which  to  extend  the  territorial  sea? 
No,  we  assert.  At  the  present  day  this  question  will  hardly  bear  dis- 
cussion, on  account  of  the  long  range  of  cannon ;  and  though  we  should 
return  to  the  time  when  that  range  was  less,  we  should  still  undertake 
to  justify  this  extension  of  the  custom-house  radius;  and  for  this  it  is 
sufficient  to  invoke  the  reasons  given  iu  matters  of  sanitary  police.  It 
does  not  involve  simply  a  reciprocal  concession  of  states,  or  a  tacit 
agreement  between  them,  but  it  is  the  exercise  of  their  respective 
rights.    •    •    • 

"The  American  and  English  practice  allows  the  seizure,  even  outside 
of  the  ordinary  limit  of  the  territorial  waters,  of  vessels  violating  the 
custom  laws." 


I 


Says  M.  Oalvo  (Le  droit  international,  sec.  244) : 

"In  order  to  decide  the  question  in  a  manner  at  once  rational  and 
practical,  it  should  not  be  lost  sight  of  at  the  outset  thii  die  state  has 
not  over  the  territorial  sea  a  right  of  property,  but  a  rigliiof  inspection 
and  of  jurisdiction  in  the  interest  of  its  own  safety,  or  of  the  protection 
of  its  revenue  interests. 

"The  nature  of  things  demonstrates,  then,  that  the  right  extends  up 
to  that  point  where  its  existence  justifies  itself,  and  that  it  ceases  when 
the  apprehension  of  serious  danger,  practical  utility,  and  the  possi- 
bility of  eflfectively  carrying  on  definite  action  cease. 

"  Maritime  states  have  an  incontestible  right,  however,  for  the  de- 
fense of  their  respective  territories  against  sudden  attack,  and  for  the 
protection  of  their  interests  of  commerce  and  of  revenues,  to  establish 


APPENDIX  TO  PART  THIRD — DIVISION   II. 


185 


an  active  inspection  on  their  cotiRt  and  its  vicinity,  and  to  adopt  all 
iiecessury  measures  for  shutting  off  access  to  their  territory  to  those 
wlioni  they  may  refuse  to  receive,  where  tliey  do  not  conform  to  estab- 
lislied  re<;;uIations.  It  is  a  natural  consequence  of  the  i;eneral  principle, 
that  whatever  anyone  shall  have  done  in  behalf  of  his  aelf-defeuse  he 
will  be  taiten  to  have  done  rightly. 

"  Every  nation  is  tlius  free  to  establish  an  inspe<!tion  and  a  police  over 
its  coasts  as  it  pleases,  at  least  where  it  has  not  bound  itself  by  treaties. 
It  can,  according  to  the  particular  conditions  of  the  coasts  and  waters, 
fix  the  distance  correspondingly.  A  common  usage  has  established  a 
cannon  shot  as  the  distance  which  it  is  not  permitted  U>  overleap,  except 
in  the  exceptional  case,  a  line  which  has  not  alone  received  the  ap- 
proval of  (jrotins,  liynkershiik,  Galiana,  and  Kluber,  but  has  been 
confirmed  likewise  by  tlie  laws  and  treaties  of  many  of  the  nations. 

"Nevertheless  we  can  maintain  further  witli  Vattol  that  the  domin- 
ion of  the  state  over  the  neighboring  sea  extends  as  far  as  it  is  neces- 
sary to  insure  its  safety,  and  as  far  as  it  can  make  its  power  respected. 
And  we  can  further  regard  with  Kayneval  the  distance  of  the  horizon 
which  can  be  fixed  upon  the  coast  as  the  extreme  limit  of  the  measure 
of  surveillance.  The  line  of  the  cannon  shot,  which  is  generally 
regarded  as  of  common  right,  presents  no  invariable  base,  and  the  line 
can  be  fixed  by  the  laws  of  each  state  at  least  in  a  provisional  way." 
(Heffter,  Int.  Law,  Sees.  74-75.) 

liluntschli  says:  (Int.  Law,  Book  iv,  sec.  322). 

"The  jurisdiction  of  the  neighboring  sea  does  not  extend  further  than 
the  limit  judged  necessary  by  ^he  police  and  the  military  authorities." 

And  section  342 : 

"Whenever  the  crew  of  a  ship  has  committed  a  crime  upon  land,  or 
within  water  included  in  the  territory  of  another  state  and  is  pursued 
by  judi(!ial  authorities  of  such  state,  the  pursuit  of  the  vessel  may  be 
continued  beyond  the  waters  which  are  a  part  of  the  territory,  and  even 
into  the  open  sea." 

And  in  a  note  he  says: 

"This  extension  is  necessary  to  insure  the  eflQciency  of  penal  justice. 
It  ends  with  the  pursuit." 

Carnazza-Amari  (Int.  Law,  sec.  2,  chap.  7,  page  60),  after  citing  from 
M.  Calvo  the  passage  quoted  above,  says : 

"  Nevertheless  states  have  a  right  to  exact  that  their  security  should 
not  be  jeopardized  by  an  easy  access  of  foreign  vessels  menacing  their 
territory;  they  may  see  to  the  collection  of  duties  indis])ensable  to  their 
existence,  which  are  levied  upon  the  national  and  foreign  produce,  and 
which  nioritime  contraband  would  doubtless  lessen  if  it  should  not  be 
suppressed.  From  all  these  points  of  view  it  is  necessary  to  grant  to 
each  nation  the  right  of  inspection  over  the  sea  which  washes  its  coasts, 
within  the  limits  required  for  its  security,  its  '  uiquillity,  and  the  pro- 
tection of  its  wealth.  •  •  •  States  are  r  iged,  in  the  interest  of 
their  defense  and  their  existence,  to  subject  t  '  their  authority  the  sea 
bordering  the  coast  as  far  as  they  are  able,  or  as  far  an  there  is  need, 
to  maintain  their  dominion  by  force  of  arms.    •    •    • 


if*, 


rf    ' 


'I   ft 
f 

i 


!  f 


:  I 


fp 

*f 

u|'. 

pf- 

^1 

'  '*■ 

i 

llli'i 

%im 

186 


ABGUMKHT  OP  THE  UNITED  STATES. 


"  It  18  necessary  to  concede  to  every  nation  a  right  of  surveillance 
over  the  bordering  sea  with/n  the  limits  which  its  security,  its  tran- 
quillity, and  its  wenlth  demand.  •  •  •  Baldo  and  other  anthoiities 
place  tlie  line  at  00  miles  from  the  shore.  Gryphiander  and  Paeuinez, 
at  100.  Locennius,  at  »  point  from  which  a  ship  can  sail  in  two  days. 
Bynkershock  maintains  that  the  territorial  sea  extends  as  far  as  the 
power  of  artillery.  This  limit  is  regarded  as  the  correct  one,  not  because 
it  is  founded  on  force,  but  because  it  is  the  limit  necessary  for  the  safety 
of  the  state." 

[NOTE  1,  PAGE  153.  THE  OAROLINK  CASE.] 


Mr.  Webster  said,  addressing  the  British  Government; 

<<  Under  those  circumstances,  and  under  those  immediately  connected 
with  the  transaction  itself,  it  will  be  for  Her  Majesty's  Government  to 
show  upon  what  state  of  facts  and  what  rules  of  international  law  the 
destruction  of  the  Caroline  is  to  be  defended.  It  will  be  for  that  Gov- 
ernment to  show  a  necessity  of  self-defense,  instant,  overwhelming, 
leaving  no  choice  of  means  and  no  moment  for  deliberation. 

"It  will  be  for  it  to  show,  also,  that  the  local  authorities  of  Canada, 
even  8U])po8ing  the  necessity  of  the  moment  authorized  them  to  enter 
the  territories  of  tlie  United  States  at  all,  did  nothing  unreasonable  or 
excessive;  since  the  act,  justified  by  the  necessity  of  self-defense,  must 
be  limited  by  that  necessity,  and  kept  clearly  within  it.  It  must  be 
shown  that  admonition  or  remonstrance  to  the  persons  on  board  the 
Caroline  was  imjjracticable,  or  would  have  been  unavailing."  (Web- 
ster's Works,  Vol.  VI,  page  201.) 

Lord  Ashburton  in  his  reply  says: 

"Every  consideration,  therefore,  leads  us  to  set  as  highly  as  your  Gov- 
ernment can  possibly  do  this  paramount  obligation  of  reciprocal  respect 
for  the  independent  territory  of  each.  But  however  strong  this  duty 
may  be,  it  is  admitted  by  all  writers,  by  all  jurists,  by  the  occasional 
practice  of  all  nations,  not  excepting  your  own,  that  a  strong  overpow- 
ering necessity  may  arise  when  this  great  principle  may  and  must  be 
suspended.  It  must  be  so,  for  the  shortest  possible  period  during  the 
continuan(!e  of  an  admitted  overruling  necessity,  and  strictly  confined 
within  the  narrowest  limits  imposed  by  that  necessity.  Self-defense  is 
the  first  law  of  our  nature,  and  it  must  be  recognized  by  every  code 
which  professes  to  regulate  the  condition  and  relations  of  man.  Upon 
this  modification,  if  I  may  so  call  it,  of  the  grejit  general  principle,  we 
seem  also  to  be  agreed ;  and  on  this  part  of  the  subject  I  have  done 
little  more  than  repeat  the  sentiments,  though  in  less  forcible  language, 
admitted  and  maintained  by  you  in  the  letter  lo  which  you  refer  me. 

"  Agreeing,  theieforo,  on  the  general  principle,  and  on  the  possible  ex- 
ception to  which  it  is  liable,  the  only  question  between  us  is  whether 
this  occurrence  came  within  the  limits  fairly  to  be  assigned  to  such  ex- 
ceptions; whether,  to  use  your  words,  there  was  that  necessity  of 
self-defense,  instant,  overwhelming,  leaving  no  choice  of  means,  which 
preceded  the  destruction  of  the  Caroline  while  moored  to  the  shore  of 
the  United  States.  Give  me  leave,  sir,  to  say,  with  all  possible  admi- 
ration of  your  very  ingenious  discussion  of  the  general  principles  which 
are  supposed  to  govern  tbe  right  and  practice  of  interference  by  the 
people  of  one  country  in  the  wars  and  quarrels  of  others,  that  this  part 
of  your  argument  is  little  applicable  to  our  immediate  case.  If  Great 
Britain,  America,  or  any  other  country,  suffer  their  people  to  fit  out 


APPENDIX  TO   PART  THIRD — DIVISION   II. 


187 


expeditions  to  take  part  in  distant  quarrels,  such  conduct  may,  accord- 
ing to  the  circunistnnces  of  each  case,  be  justly  matter  of  complaint, 
and  perhaps  these  transa^^tions  have  generally  been  in  late  times  too 
Biuch  overlooked  or  connive<l  at. 

*^  But  the  case  we  are  considering  is  of  a  wholly  different  description, 
and  may  be  best  determined  by  answering  tlic  following  question :  Sup- 
posing a  man  standing  on  ground  where  you  have  no  legal  right  to  fol- 
low him,  has  a  weapon  long  enough  to  reach  you,  and  is  striking  you 
down  and  endangering  your  life,  how  long  are  you  bound  to  wait  for 
the  assistance  of  the  authority  having  the  legal  power  to  relieve  you? 
Or,  to  bring  the  facts  more  immediately  home  to  the  case,  if  cannon 
are  moving  and  setting  u])  in  a  battery  which  can  reach  you,  and  are 
actually  destroying  life  and  property  by  their  fire;  if  you  have  remon- 
strated for  some  time  without  effect  and  see  no  prospect  of  relief,  when 
begins  your  right  to  defend  yourself,  should  you  have  no  other  means 
of  doing  so  than  by  seizing  your  assailant  on  the  verge  of  neutral  ter- 
ritory?" (British  and  Foreign  Correspondence  for  1841, 1842,  Vol.30, 
page  196.) 

Lord  Campbell  says  of  this  case  in  his  autobiography  (Life,  etc., 
edited  by  Mrs.  Hardcastle,  1881,  Vol.  2,  p.  118): 

"The  affair  of  the  Caroline -was  much  more  difficult.  Even  Lord 
Grey  told  me  he  thought  we  were  quite  wrong  in  what  we  had  done; 
but  assuming  the  facts  that  the  Caroline  had  been  engaged  and  when 
seized  by  us  was  still  engaged  in  carrying  sui)plies  and  military  stores 
from  the  American  side  of  the  river  to  the  rebels  in  Navy  Island,  pitrt 
of  the  British  territory,  that  this  was  permitted  or  could  not  be  pre- 
vented by  the  American  authorities,  I  was  clearly  of  opinion  that 
although  she  lay  on  the  American  side  of  the  river  when  she  was  seized, 
we  had  a  clear  right  to  seize  and  to  destroy  her,  just  as  we  might  have 
taken  a  battery  erected  by  the  rebels  on  the  American  shore,  the  guns 
of  which  were  tired  against  the  Queen's  troops  in  Navy  Island.  I  wrote 
along  justification  of  our  Government,  and  this  supplied  the  arguments 
used  by  our  foreign  secretary,  till  the  Ashburton  treaty  husher  up  the 
dispute." 

Mr.  Calhoun  said  of  it  in  a  speech  in  the  Senate  in  which  he  insisted 
that  the  capture  of  the  Caroline  in  American  waters  was  unjustifiable, 
because  unnecessary : 

"  It  is  a  fundamental  principle  in  the  law  of  nations  that  every  state 
or  nation  has  full  and  complete  jurisdiction  over  its  own  territory  to 
the  exclusion  of  all  others,  a  principle  essential  to  independence,  and 
therefore  held  most  sacred.  It  is  accordingly  laid  down  by  all  writers 
on  those  laws  who  treat  of  the  subject  that  nothing  short  of  extreme 
necessity  can  justify  a  belligerent  in  entering  with  an  armed  force  on 
the  territory  of  a  neutral  power,  and  when  entered,  in  doing  any  act 
which  is  not  forced  on  him  by  the  like  necessity  which  justified  the  en- 
tering." 


1 


11 


[NOTE    1    (PAGE    156.)      NEGOTIATION  BKTWEEN  UNITED  STATES  AND  GREAT  BRITAIK 
RELATIVE  TO  THE  NEWFOUNDLAND  FISHERIES.] 


Mr.  Adams  says  (documents  -elating  to  the  negotiations  of  Ghent, 
page  184) : 

"  That  fishery,  covering  the  bottom  of  the  banks  which  surround  the 
island  of  Newfoundland,  the  coasts  of  New  England,  Nova  Scotia,  the 
Gulfs  of  St.  Lawrence  and  Labrador,  furnishes  the  richest  treasure  and 


<i,;l  { 


188 


ARGUMENT  OF  THE  UNITED  STATES. 


the  niostbenoflcent  tribute  tlie  ocean  pays  to  earth  on  thia  terraqneonft 
j^Iobe.  By  tlie  ploiisnre  of  the  (Creator  of  earths  and  sens,  it  has  been 
constituted  in  its  physical  nature  one  fishery,  cxtendinf^  in  tlie  open 
seas  around  that  island  to  little  less  than  five  degrees  of  latitude  from 
the  coast,  spreading  along  the  whole  northern  coast  of  this  continent, 
and  insinuating  itself  into  all  the  bays,  creeks,  and  harbors  to  the 
very  borders  of  the  shores.  For  the  ftill  enjoyment  of  an  equal  share 
in  this  fishery  it  was  necessary  to  have  a  nearly  general  access  to 
every  part  of  it.    •    •    • 

"  IJy  the  law  of  nature  this  fishery  belonged  to  the  inhabitants  of 
the  regions  in  the  neighborhood  of  which  it  was  situated.  By  the  con- 
ventional law  of  Europe  it  belonged  to  the  European  nations  which  had 
formed  settlements  in  those  regions.  France,  as  the  first  principal  set- 
tler in  them,  had  long  claimed  exclusive  right  to  it.  Great  Britain, 
moved  in  no  small  degree  by  the  value  of  the  fishery  itself,  had  made 
the  conquest  of  all  those  regions  from  France  (by  force),  and  had  lim- 
ited, by  treaty,  within  a  narrow  compass  the  right  of  France  to  any 
share  in  the  fishery.  Spain,  upon  some  claim  of  prior  discovery,  had 
for  some  time  enjoyed  a  share  of  the  fishery  on  the  banks,  but  at  the 
last  treaty  of  jjcace  i)rior  to  the  American  Revolution  had  expressly 
renounced  it.  At  the  commencement  of  the  American  Revolution, 
therefore,  this  fivshery  belonged  exclusively  to  the  British  nation,  sub- 
iect  to  a  certain  limited  participation  in  it  reserved  by  treaty  stipu- 
lations to  France." 

He  further  cites  (page  185)  an  act  of  the  British  Parliament  passed 
in  March,  1875: 

"  In  March,  1775,  the  British  Parliament  passed  an  act  to  restrain 
the  trade  and  commerce  of  the  provinces  of  Massachusetts  Bay  and  New 
Hampshire,  and  colonies  of  Connecticut  and  Rhode  Island,  and  Provi- 
dence Plantation  in  North  America,  to  Great  Britain,  Ireland,  and  the 
British  Islands  in  the  West  Indies,  and  to  prohibit  such  provinces  and 
colonies  from  carrying  on  any  fishery  on  the  banks  of  Newfoundland 
and  other  places  therein  mentioned,  under  certain  conditions  and  limi- 
tations." 

And  the  remarks  of  Lord  North  in  bringing  in  the  bill: 

"  In  ])articular  he  said  that  the  fishery  on  the  banks  of  Newfound- 
land and  the  other  banks  and  all  the  others  in  America  was  the  un- 
doubted right  of  Great  Britain;  therefore  toe  might  dispose  of  them  aa 
we  pleased.''^ 

Mr.  Adams  again  observes  (page  187) : 

"The  whole ^sAerj/ (with  the  exception  of  the  reserved  and  limited 
right  of  France)  was  the  exclusive  property  of  the  British  Empire.  The 
right  to  a  full  jiarticipation  in  that  property  belonged  by  the  law  of 
nature  to  the  people  of  New  Etigland  from  their  locality." 

And  in  support  of  the  validity  of  this  proprietary  right,  he  quotes 
(page  107)  the  passjvge  from  Vattel  heretofore  cited.   ( Vattel,  1  Ch.,  23.) 

He  cites  also  (page  169)  from  Valin  (Vol.  2,  page  693)  in  respect  to 
these  fisheries  as  follows: 

"As  to  the  right  of  fishing  upon  the  bank  of  Newfoundland,  as  that 
island  which  is  as  it  Avere  the  seat  of  this  fishery  then  belonged  to 
France,  it  was  so  held  by  the  French  that  other  nations  could  naturally 
fish  there  only  by  virtue  of  the  treaties.  This  has  since  changed  by 
means  of  the  cession  of  the  island  of  Newfoundland  made  to  the  English 
by  the  treaty  of  Utrecht;  but  Louis  XIV,  at  the  time  of  that  cession, 
made  an  express  reservation  of  the  right  of  fishing  upon  the  bank  oi 
Newfoundland,  in  favor  of  the  French  aa  before." 


APPENDIX   TO   PAET   THIRD DIVISION    II. 


189 


And  Mr.  Adams  quotes  (page  109)  from  Mr.  Jeflerson's  Report  on  the 
Fisheries,  of  February  1,  1791,  as  follows: 

"Spain  had  fornially  reliiiquiHhed  her  pretensions  to  a  participation 
in  these  fisheries  at  the  close  of  the  preceding  war,  and  at  tiie  end  of 
this,  the  atljaeeub  c(  ntinent  and  islands  beiii};  divided  between  the 
United  States  and  the  English  and  French,  for  the  last  retained  two 
small  islands  merely  for  this  object,  the  right  of  fishing  was  appropri- 
ated to  them  also." 

And  he  quotes  also  (pages  189,  190)  the  language  of  Lord  North  and 
Lord  Loughborough  in  the  debate  in  Parliament  on  the  treaty  of  1703, 
in  which  the  concei'sion  to  the  Americans  in  that  treaty  of  rights  of 
fishiug  was  treated  as  an  improvident  and  unnecessary  concession. 


[NOTE  1,  PAGE  169.      FBRNCH  LEGISLATION  FOR  REVENUE  PROTECTION.] 


Law  or  decree  of  August  6,  1791,  Title  iii,  Article  i:  "All  goods 
prohibited  admission  which  may  be  entered  by  sea  or  by  land  shall  be 
confiscated  as  well  as  the  ships  under  fifty  tons,  etc." 

Article  II:  "All  prohibited  goods  shall  be  aecounted  for  according 
to  the  terms  of  the  above  article,  *  •  •  which  the  revenue  otliccrs 
shall  have  found  within  the  two  leagues  of  the  coasts  on  vessels  under 
fifty  t<ms." 

Title  13  of  the  police  in  general,  article  0:  "The  inspection  of  the 
vessels,  tenders,  or  of  the  sloops  can  take  place  at  sea  or  on  tlie  rivers." 

Article  Vii:  "The  officers  of  inspections  on  the  said  tenders  can 
visit  the  vessels  under  fifty  tons  which  may  be  found  at  sea  at  the  dis- 
tance of  two  leagues  from  the  coast,  and  to  receive  the  bills  of  lading 
concerning  their  cargo.  If  these  vessels  are  loaded  with  ]U'ohibitivo 
go<3ds  the  seizure  of  the  same  shall  be  made,  and  confiscation  shall  be 
pronounced  against  the  master  of  the  vessel  with  a  penalty  of  five 
hundred  pounds." 

Law  or  decree  of  the  4th  Germinal,  year  2d,  March  24,  1794,  relating 
to  maritime  commerce  and  revenue: 

Title  II,  article  3:  "The  captain  arriving  within  the  four  miles  of  the 
coast  will  submit  when  required,  a  copy  of  the  manifest  to  the  custom- 
house official  who  will  come  on  board,  and  will  vise  the  original." 

Article  7 :  "  The  captain  and  the  other  officers  on  the  revenue  vessels 
may  visit  all  ships  under  one  hundred  tons  which  are  at  anchor  or 
luffing  within  the  four  leagues  of  the  coasts  of  France,  excepting  they  be 
of  superior  strength.  If  the  ships  have  on  board  goods  of  which  the 
import  into  and  exi)ort  from  France  is  prohibited,  they  shall  be  confis- 
cated, as  well  as  the  cargoes,  together  with  a  fine  of  five  hundred 
pounds  against  the  captains  of  the  ships." 

Provisions  confirmed  by  the  following  laws: 

Law  of  March  27, 1817,  article  13:  "The  same  penalty  shall  be  ap- 
plied in  the  case  provided  by  article  7  of  law  of  the  4th  Germinal,  year 
2,  Title  II,  to  ships  under  one  hundred  tons  overtaken,  except  they  be 
of  superior  strength,  within  the  two  myriameters  (four  leagues)  of  the 
coasts,  having  on  board  forbidden  merchandise," 


U\ 


J.  5 


v 


f-' 


-'  s 


190 


▲aaUMENT  OF  THU  UNITED  STATES. 


i 


FOURTH. 

CONCURRENT  REGULATIONa 

The  five  questions  which,  in  the  order  adopted  by  the  Treaty,  are 
first  submitted  to  the  Tribunal  of  Arbitration,  may  for  practical  pur- 
poses bo  reduced  to  I'^wo;  and  these  present  for  consideration  the  tw 
l^eneral  grounds  upoik  which,  in  the  contemplation  of  the  Tre'^ty,  the 
United  States  might  assert  a  right  to  prevent  the  pursuit  and  capture 
of  the  Alaskan  flir-se&<ls  on  the  high  seas.  The  first  is  the  possession 
by  the  United  States  of  a  juiisdiction  or  right  to  exercise  autliority  in 
Bering  Sea  sufficient  to  enable  it  to  protect  their  sealing  industries 
against  injury  from  the  prosecution  of  pelagic  sealing  by  the  vessels  of 
any  nation.  The  second  is  the  property  right  or  interest  in  the  seal  herd, 
or  in  the  industry  of  cherishing  and  cultivating  that  herd  on  the 
PribUof  Islands,  and  taking  the  annual  increase  for  the  purpose  of 
suppljring  the  world's  demand.  The  treaty  apparently  assumes  that 
a  determination  in  favor  of  the  United  States  of  the  question  of  juris- 
diction in  Bering  Sea  might  amount  to  a  final  disposition  of  the  whole 
substance  of  the  controversy;  but  it  is  cautious  in  this  particular,  and, 
having  in  view  the  extreme  importance  of  preserving  the  seals  from 
threatened  extermination,  contemplates  that  even  in  the  event  of  such 
favorable  decision  the  United  States  might  not  be  able,  by  any  exer- 
cise of  the  powers  thus  conceded  to  them,  to  insure  this  preservation ; 
but  that  regulations  to  be  adopted  by  the  concurrent  action  of  both 
nations  might  be  necessary ;  and  this  contemplated  possibility  is  not,  in 
the  view  of  the  Treaty,  displaced  by  any  determination  which  may  be 
reached  upon  the  question  of  property. 

The  seventh  article,  therefore,  broadly  provides  that: 

K  the  determination  of  the  foregoing  questions  as  to  the  exclusive 
turisdiction  of  the  United  States  shall,  leave  the  subject  in  such  posi- 
tion that  the  concurrence  of  (Jr^at  Britain  is  necessary  to  the  estab- 
lishment of  regulations  for  the  proper  protection  and  preservation  of 
the  fur-seal  in  or  habitually  resorting  to  the  Behring  Sea,  the  arbitrators 
shall  then  determine  what  concurrent  regulations  outside  the  jurisdic- 
tional limits  of  the  respective  governments  are  necessary,  and  over 
yrh»t  waters  saoh  regulatioaa  should  extend,  etc.,  etc 


CONCURRENT  REGULATIONS. 


191 


The  reasons  for  leaving  the  consideration  of  concurrent  regulations 
thus  broadly  open  are  manifest.  In  all  judicial  controversicH,  except 
such  as  plainly  involve  nothing  more  than  tlie  qucKtion  of  the  right  to 
a  money  payment,  the  particular  relief  which  may  be  best  Huited  to  the 
exigon<5y  of  the  case  can  never  be  accurately  perceived  until  all  the 
rights,  both  principal  and  incidental,  are  ascertained;  and,  conse- 
quently, the  character  and  ex!  i .  t  of  the  relief  are  left  to  be  determined 
along  with,  or  siibsequent  to,  ^he  determination  of  the  merits  of  the 
case.  This  was  especially  true  of  the  present  controversy  in  the  form 
which  it  assunied  at  the  tune  of  the  lieaty.  The  questions  at  that  time 
had  received  a  diplomatic  troatJuent,  only.  This  disclosed  that  several 
novel  legal  questions  wore  involved  concerning  which  the  high  contract- 
ing parties  were  not  agreed.  Btit  they  were  agreed  that,  whatever 
might  be  the  true  solution  of  such  questions,  there  was  one  object  ex- 
tremely desirable  to  both,  namely,  that  the  fur-seals  sliould  be])reserved 
from  the  peril  of  extermination.  If  it  were  determined  tliat  the  United 
States  had  no  property  interest  in  the  seals,  and  no  exclusive  jurisdiction 
in  Bering  Sea,  concurrent  regulations  would  certainly  bo  necessary. 
And  if  it  were  determined  that  they  had  no  property  interest,  but  had  the 
exclusive  jurisdiction,  it  might  yet  be  that  the  inadequacy  of  aprotection, 
however  efficiently  exerted,  which  would  be  limited  to  tlieso  waters, 
would  still  render  concurrent  regulations  necessary  to  complete  protec- 
tion. And,  even  if  it  were  determined  that  they  had  both  the  requisite 
jurisdiction  and  the  property  interest,  there  might  be  a  question  con- 
cerning the  action  which  they  might  take  to  protect  such  interest  in 
the  Pacific  Ocean,  south  of  Bering  Sea.  Satisfactory  conclusions  upon 
all  these  questions  could  only  be  had  by  an  attentive  examination,  aided 
by  a  full  ijroduction  of  proofs,  not  only  of  the  questions  of  right,  but 
also  of  the  whole  subject  of  sealing,  and  of  the  practical  measures 
which  might  be  requisite  to  assure  the  protection  which  both  part'cs 
agreed  to  be  supremely  d.  sirable.  The  single  event  which  appears  to 
have  been  regarded  as  possibly  rendering  it  unnecessary  to  consider  the 
question  of  concurrent  regulations  was  a  determination  that  the  United 
States  possessed  the  exclusive  jurisdiction  in  or  over  some  part  of 
Bering  Sea.  A  protection  enforced  by  the  United  States  in  the  exer- 
cise of  such  an  authority  might  be  sufficiently  effective  for  the  agreed 
purpose  of  preservation,  and  render  any  concurrent  action  on  the  part 
of  Great  Br'tain  unnecessary;  but  this  was  uncertain.  Hence  the  lan- 
guage of  t^e  Treaty,  caf  e^ly  shaped  90  t^s,  uot  tp  attempt  anticipations 


1 


mhk 


■i,.fl  ii 


n  m 


192 


ARGUMENT   OP   THE   UNITED   STATES. 


It  i 


r  1 


which  might  be  disappointed,  made  it  the  duty  of  the  Tribunal,  "if  the 
determination  of  the  foregoing  questions  as  to  the  exclusive  jurisdic- 
tion of  the  United  States  shall  leave  the  subject  in  such  a  position  that 
the  concurrence  of  Great  Britain  is  necessary  to  the  establishment  of 
regulations,"  etc.,  to  proceed  and  "determine  what  concurrent  regula- 
tions outside  the  juiisdictional  limits  of  the  respective  Governments 

are  necessary,"  etc. 

* 

The  first  question  which  arises  here  is,  what  is  the  scope  of  the  in- 
quiry which  the  Tribunal  is  called  upon  to  makef  It  is  to  deter- 
mine what  regulations  consistent  tcith  the  pursuit  of  pelagic  sealiuff  are 
necessary?  It  if  s.  or  in  any  other  way,  limited  in  its  inquiry  1 
It  may  be  urged  thac  we  are  at  liberty  to  look  into  the  diplomatic 
communications  which  preceded  the  treaty  and  led  to  it,  with  the 
view  of  more  clearly  ascertaining  what  the  precise  intent  iu  this 
and  other  respects  was,  and  that,  when  these  are  taken  into  view,  it 
appears  that  all  that  the  United  States  claimed  was  that  the  opera- 
tions of  the  Canadian  sealers  should  be  placed  under  restrictions,  such 
as  those  afforded  by  a  close  time  and  prohibited  areas. 

It  is  freely  admitted  that  when  suggestions  were  first  made  for  the 
settlement  of  questions  growing  out  of  the  depredations  of  the  Cana 
dian  sealers  and  the  seizures  of  vessels  emi)loyed  for  that  purpose,  it 
was  believed  by  the  United  States  that  the  substantial  enjoyment  by 
them  of  the  rights  acquired  by  tlieir  acquisition  of  Alaska  from  Russia 
might  be  secured,  and  the  herds  of  seals  protected  sufficiently  for 
that  purpose  by  some  scheme  of  restriction  in  place  or  time,  or  both 
of  pelagic  sealing.  And  it  is  believed  that  the  Government  of  Great 
Britain  at  the  same  time  supposed  that  such  restrictiontj  would  suffice 
for  the  preservation  of  the  herd. 

But  the  whole  subject  was  at  that  time  novel  and  very  imperfectly 
understood  in  either  country.  The  cause,  peiagic  sealing  with  its  re- 
sults, which  gave  rise  to  the  complaints  on  each  side  was  recent,  and 
had  not  assumed  the  proportions  which  it  subsequently  exhibited,  nor 
was  the  actual  magnitude  of  it  at  that  time  known.  Nor  had  the  habits 
of  the  seals,  their  migrations,  and  the  places  at  which  they  might  from 
time  to  time  be  found,  up<m  which  the  questions  respecting  rights  of 
property  in  them  so  much  depend,  been  studied  and  fully  ascertained. 
The  United  States  had,  from  the  first,  a  conviction  that  their  industry, 
which  came  to  them  as  a  part  of  their  acquisition  from  Bussia,  of  cher- 
ishing fw4  protecting  their  seals  upou  the  Fribilof  isl^dsi  to  (Ue  ea4 


CONCURRENT  REGULATIONS. 


193 


that  they  might  appropriate  to  themselves  the  annual  increase  without 
impairing  the  stock,  could  not  be  destroyed  by  the  indiscriminate  and 
unrestricted  slaughter  of  the  animal  upon  the  seas.  What  the  precise 
nature  of  their  right  was,  and  what  its  limits  were,  had  not  been  sub- 
jected to  thorough  consideration.  That  they  could  prevent  marauding 
upon  the  islands  themselves  and  in  the  waters  immediately  surround- 
ing them,  and  also  any  hovering  in  the  neighborhood  of  them  for  such 
purposes,  seemed  too  plain  for  qiiestion.  And  in  view  of  the  circum- 
stance that  this  industry  had  been  cherished  by  Russia  for  half  a  cen- 
tury, and  that  the  claims  to  prohibitive  jurisdiction  over  Bering  Sea  had 
been  for  a  similar  period  asserted,  and,  as  was  believed  by  the  Govern- 
ment of  the  United  States,  for  the  most  part  acquiesced  in,  it  seemed 
to  the  Congress  of  the  United  States  a  reasonable  exercise  of  natural 
rights  to  prohibit  tlio  capture  of  fur-bearing  animals  in  the  eastern  half 
of  Bering  Sea,  and  laws  were  enacted  by  that  body  dnsigned  to  effect 
such  prohibition. 

These  laws  were  not  limited  in  their  operation  to  citizens  of  the  United 
States,  but  might  be  enforced  against  the  citizens  of  other  nations; 
and  while,  by  their  terms,  they  assumed  to  be  operative  only  over  the 
Territory  of  Alaska  and  "the  waters  thereof,"  their  language  was  in- 
terpreted to  include  so  much  of  Bering  Sea  as  was  embraced  by  the 
terms  of  the  cession  from  Kussia  to  the  United  States.  At  first  there 
was  little,  if  any,  occasion  for  any  attempt  to  enforce  the  prohibitiops 
of  this  legislation  against  any  persons  engaging  in  pelagic  sealing.  It 
was  not  until  the  year  1886  that  this  mode  of  pursuit  had  been  prose- 
cuted sufficiently  to  attract  the  serious  notice  of  the  United  States; 
but  in  that  year  quite  a  large  number  of  vessels  were  fitted  out  for  this 
purpose  from  Canadian  ports  on  the  northwest  coast,  and  entered  Ber 
ing  Sea.  Some  of  them  were  captured  by  armed  vessels  of  the  United 
States,  and  demands  for  the  release  of  thorn  wore  made  by  Her  Ma- 
jesty's Government. 

In  the  discussions  which  followed  those  demands,  the  right  of  the 
United  States  to  make  such  captures  was  asserted  by  them  and  denied 
by  Her  Majesty's  Government;  but  the  destructive  tendencies  of  the 
pursuit  thus  sought  to  be  prevented  by  the  United  States  was  substan- 
tially admitted  and  regarded  on  both  sides  as  threatening  practical  ex- 
termination of  the  auiinals.  This  would  haveaffeoteil  most  disastrous* 
ly  the  interests  of  both  n  j.tions.  Both  would  thereby  lose,  in  common  with 
the  world  at  large,  the  benefits  derived  from  the  useful  products  of  that 
14749 13 


k 


r>i 


194 


ARGUMENT   OF   THE   UNITED   STATES. 


Itt 


lit 


animal.  And  while  the  United  States  would  be  subjected  to  apjirticu- 
lar  injury  in  being  deprived  of  the  profit  coming  from  the  sealing  in- 
dustries on  the  Pribilof  Islands,  Canada,  one  of  the  dependencies  of 
Great  Britain,  would  lose  the  supposed  benefit  of  pelagic  sealing;  and 
England  would  be  subjected  to  the  far  greater  loss  which  would  come 
from  the  breaking  up  of  her  industry  in  the  manufacture  of  tki  seal- 
skins, in  which  some  thousands  of  her  people  were  engaged. 

These  considerations  naturally  led  to  the  suggestion  that  both  nations 
possessed  such  a  common  interest  in  the  preservation  of  the  herd  as  to 
make  it  expedient  for  them  to  make  an  effort  to  reach  some  agreement 
designed  to  bring  about  that  result,  which,  if  successful,  would  not  only 
terminate  the  existing  dispute,  but  subserve  the  permanent  interests 
of  tbe  parties. 

In  the  absence  of  full  and  correct  information  by  the  diplomatic  rep- 
resentatives of  the  two  governments  of  the  nature  and  liabits  of  the 
animal  and  of  the  laws  governing  its  reproduction  and  increase,  the  pe- 
culiar device  for  the  preservation  of  wild  animals  by  restricting  their 
slaughter  to  a  limited  time  was  suggested,  and  apparently  accepted  on 
botli  sides,  almost  immediately,  as  being  likely  to  furnish  a  sufficient 
safeguard  against  the  apprehended  destruction.  The  time  during 
which  such  a  restriction  should  be  enforced,  the  only  point  mpon  which 
diflference  of  opinion  might  have  been  anticipated,  was  at  once  agreed 
upon,  and  there  can  be  little  doubt  that  a  formal  agreement  would  have 
been  immediately  framed  and  ratified,  had  not  Canada,  moved,  presum- 
ably, by  the  remonstrances  of  her  pelagic  sealers,  interposed  and  pressed 
an  objection."  It  is  fortunate,  in  the  view  of  the  United  States,  that 
such  an  agreement  was  not  consummated.  It  would  have  proved 
wholly  illusive. 

The  fimndation  of  this  concurrence  in  the  device  of  a  close  season  was 
the  predominating  necessity  of  preserving  the  auimals  from  extinction ; 
and  there  is  no  reason  to  suppose  that,  had  it  then  appeared  that  ab- 
solute prohibition  of  pelagic  sealing  was  requisite  to  that  end,  such  pro- 
hibition would  have  been  acceded  to  in  the  absence  of  remonstrance 
from  Canada,  originating  in  the  present  interest  of  persons  engaged  in 
pelagic  sealing,  an  interest  which  regarded  with  comparative  indiffer- 
ence the  eventual  fate  of  the  animal.  It  is  not  to  be  supposed  that  the 
enlightened  statesmanship  of  Lord  Salisbury,  unembarrassed  by  any 


'Diplointtio  Correapoudenco,  Caae  of  the  Uui  ted  States,  Appendix,  Vol.  I,  pp.  176 
to  183,  iiicluiiivo. 


'  Dipl 
^sa  to 


CONCURRENT   REGULATIONS. 


195 


difficulty  growing  out  of  the  opposition  of  a  great  dependency  of  the 
British  Empire,  would  have  insisted  for  a  moment  upon  a  continued  in- 
dulgence of  the  pursuit  of  i>elagic  sealing,  had  it  appeared  that  such  a 
a  course  would  have  involved,  in  the  near  future,  the  practical  extermi- 
nation of  the  fur-seals.  He  surely  would  not  have  sacrificed  the  inter- 
ests of  the  world  and  the  very  large  special  manufacturing  interest  of 
Great  Britain,  in  order  to  save  for  a  few  years  a  pursuit  which  was  rap- 
idly working  the  destruction,  not  only  of  the  great  interests  above  re- 
ferred to,  but  also  of  itself. 

T?he  failure  of  the  negotiations  referred  to  left  the  situation  involved 
not  only  with  the  existing  dispute,  but  aggravated  by  the  certainty 
that  fresh  causes  of  irritation  and  contention  would  constantly  aiise; 
and  the  proportions  of  the  controversy  continued  to  increase  until  the 
peaceful  relations  of  the  two  governments  became  most  seiiously 
threatened.  A  renewal  of  negotiations  ensued,  wliich  led  to  the  ratifi- 
cation of  the  Treaty  under  whith  the  present  Tribunal  has  been  consti- 
tuted. Whatever  may  have  been  the  effect  of  the  later  negotiations 
in  separating  the  parties  more  widely  upon  the  main  questions  of  right 
involved  in  the  controversy,  there  is  one  point  upon  wliich,  having  been 
substantially  agreed  at  first,  they  were  brought  more  and  more 
into  unison,  namely,  the  predominating  necessity  of  preserving  the 
seals.  The  Seventh  Article  of  the  Treaty  calls  upon  the  Tribunal  to 
determine  simply  "what  concurrent  regulations  outside  the  juris- 
dictional limits  of  the  respective  governments  are  necessary  to  the 
proper  protection  and  preservation  of  the  fur-seals."  Fitness  for  the 
accomplishment  of  that  end  is  the  only  description  in  the  Treaty  of  the 
regulations  which  this  Tribunal  is  to  ascertain  or  devise.  After  the 
article  had  assumed  its  present  form  in  the  negotiations,  some  effort 
was  made  by  Lord  Salisbury  to  restrict  its  effect  to  confer  upon  the 
Tribunal  the  ful'  discretitm  which  its  terms  import;  but  this  was  re- 
sisted on  the  part  of  the  United  States,  and  the  attempt  was  abandoned.  ^ 

The  foregoing  brief  review  of  the  negotiations  Avill  serve  to  show  that 
the  authority  and  discretion  of  the  Arbitrators  in  respect  of  concurrent 
regulations  is  wholly  unrestricted,  except  by  the  single  condition  tiiat 
they  are  to  be  operative  only  outside  of  the  municipal  jurisdictions. 
There  is  not  only  no  language  importing  that  some  form  or  degree  of 
that  pursuit  is  to  be  retained,  but  there  is  no  implication  even  to  that 


I  A 


I    '  11 


'.  1 


'  f  I 


I  Dlplnuintic  Correspoudcuco,  Caac  oi'  tlio  United  States,  Aiipoudii,  Vol.  I,  pp. 
StQ  to  345,  iucluaive. 


196 


AEGIIMENT  OP  THE  UNITED  STATES. 


■ 


31 


effect.  It  is  not  said  that  they  are  to  be  regulations  ofpelagie  tealing. 
They  are  regulations  "  outside  of  the  jurisdictional  limits  of  the  respect- 
ive governments,"  and  "  lor  the  proper  protection  and  preservation  of 
the  fur-seal." 

We  are  thus  brought  to  the  main  question :  What  regulations  are  ne- 
cessary? This  depends  upon  a  consideration  of  the  nature  and  habits  of 
the  seals,  the  perils  to  which  they  are  exi)«).sed,  tiie  causes  which  oper- 
ate to  diminish  their  numbers  and  prevent  their  reproduction,  and  the 
contrivances  calculated  to  be  most  effectual  to  prevent  the  operation  of 
those  causes.  It  will  be  at  once  perceived  that  such  a  discussion  must 
be,  in  great  part  at  least,  a  simple  repetition  of  that  already  gone 
through  with  upon  the  question  of  the  claim  of  a  property  interest. 
This  coui  ^s  from  the  circumstance,  which  we  trust  has  been  made  suf- 
ficiently u.anifest,  that  the  institution  of  property  is  but  the  result  of 
the  solution  by  society  of  very  much  the  same  question  which  we  are 
now  proposing  to  enter  upon.  Human  society  has  had  be^^ore  itself 
repeatedly  or  rather  constantly,  from  its  first  beginnings  his  same 
question — what  regulations  are  necessary  to  preserve  the  usej  "  races  of 
animals — and  the  uniform  solution  has  been  to  devise  and  adopt  that 
particular  class  of  regulations,  which,  taken  together  and  enforced,  con- 
stitute the  institution  of  private  property  and  it«  attendant  safeguards, 
so  far.  as  that  expedient  is  possible  and  effectual  to  the  end;  and  it  has 
been  found  thus  possible  and  effectual  in  the  case  of  all  those  animals 
whicli  voluntarily  so  far  subject  themselves  to  human  control  as  to  enable 
their  masters  to  appropriate  the  increase  without  destroying  the  bUm'Ic. 
In  respect  to  those  races  which  can  not  be  subjected  to  hiunan  control 
the  solution  has  been  to  devise  that  class  of  regulations  simply  restrict- 
ive of  slaughter,  of  which  ordinary  game  law  s  are  the  types. 

Inasmuch  as  it  is  indisputable  that  the  fur-seals  of  Alaska  are  ani- 
mals which  submit  themselves  to  human  <!ontrol,  so  far  as  to  enable  the 
proprietors  of  the  soil  to  which  they  resort  to  take  for  human  use  the 
utmost  increase  without  destroying  the  stock,  the  question  what  regu- 
lations are  necessary  for  their  proper  protection  and  preservation  is  at 
once  and  finally  answered.  There  is  but  cue  regulation  needed  "out- 
side the  jurisdictional  limits  of  the  respective  governments,"  and  that 
is  that  all  pelagic  sealing  by  the  citizens  of  either  nation  be  absolutely 
prohibited.  Unless  the  uniform  experience  of  human  society  from  the 
earliest  times  in  respect  to  such  classes  of  animals  is  not  likely  to  be 
repeated,  or  uuless  it  seem  probable  that  this  Tribunal  has  the  wisdom 


COKOUBBENT  BEQULATIONS. 


197 


and  ingenuity  to  devise  other  regulntiona  which  human  society  has 
never  as  yet  been  able  to  conceive,  which  will  effectually  counteract  the 
destructive  tendency  of  pursuit  by  men  excited  and  inflamed  by  the 
greed  for  gain,  that  regulation  must  certainly  bo  deemed  neecsmry. 

We  might  well  dismiss  the  subject  of  regulations  at  this  point,  as 
needing  no  further  elucidation,  and  should  d<»  so  except  lor  the  circum- 
stance that  it  may  possibly  be  (ionsidered  that  there  is  still  a  doubt 
concerning  the  extent  and  degree  of  the  destructive  tendency  of  a 
method  of  indiscriminate  slaughter  such  as  pcliigic  sealing  is.  That  it 
operates  directly  to  diminish  the  birth  rate  by  sacrificing  females  in- 
stead of  males,  that  it  sacrifices  large  numbers  which  are  never  recov- 
ered, and  that  this  is  unnecessary,  because  there  is  a  mode  of  selective 
slaughter  which  involves  neither  of  these  forms  ofwast^,  is  undeniable; 
and,  imismuch  as  it  is  conceded  by  the  Joint  Roi)ortof  the  Ooiiimissioners 
of  both  Governments  that  under  this  method  of  capture  the  seals  are 
diminishing  with  cumulative  rapidity,  there  seems  to  be  wanting  no  ele- 
ment requisite  to  justify  the  conclusion  that  this  absolute  prohibition  is 
necessary.  But  it  nmy  still  be  contended  that  this  mode  of  slaughter 
may,  without  absolute  prohibition,  be  so  restricted  as  to  be  compatible 
with  the  preservjition  of  the  race.  This  ])osition  is  (usumed  in  the  Re- 
port of  the  Commissioners  of  Great  Britain,  but  no  proofs  are  adduced 
or  reasons  oflferefl  by  them,  to  make  good  their  assumption. 

Tbe  first  point,  therefore,  which  shouhl  engage  our  attention  is 
whether  any  allowance  of  pelagic  sealing,  however  restricted  in  place 
or  time,  is  compatible  with  the  permanent  existence  of  the  seal  herd. 
By  the  terms  "  any  allowance,"  we  do  not  mean  the  least  nioaaure  of 
formal  permission,  such,  for  instance,  as  would  allow  the  pursuit  to  be 
carried  on  during  the  months  of  December  and  January  only,  when  the 
seas  are  so  rough,  and  the  seals  found  with  such  difliculty  tiiat  there 
is  no  temptation  to  engage  in  the  enterprise,  but  snch  permission  as 
would  affoia  some  chance  of  success,  and  tempt  undertakings  that  would 
result  in  the  capture  of  considerable  numbers  of  seals.  Any  license 
more  restricted  than  this  would  be  wholly  unimportsint  as  a  license,  and 
not  worth  discussion.  It  would  amount  for  all  substantial  purposes  to 
absolute  prohibition,  and  should  be  viewed  avS  such. 

The  question  to  which  a  clear  answer  should  first  be  given  is,  "What 
cautes  a  «Uminution  of  the  herd!"  It  might  at  first  bo  hastily  supposed 
that  any  killing  of  seals  would  work  pro  (■anto  a  decrease  of  the  nor- 
mal  uiunbeid;  but  a  moment's  roUeotiouwill  show  that  this  is  not  neces- 


M 


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»  SI 

ii'  iii} 


198 


ARGUMENT   OP   THE   UNITED   STATES. 


sarily  true.  The  animal  being  polygamous,  and  each  male  suflBcing 
for  from  thirty  to  fifty  or  more  females,  we  have  only  to  apply  comrac  i 
barnyard  knowledge  in. order  to  learn  that  under  normal  conditions 
there  must  always  be  produced  a  large  number  of  superfluous  males, 
which,  if  not  taken  away,  would,  of  themselves,  by  their  fierce  and 
destructive  contests  for  the  possession  of  the  females,  not  only  destroy 
themselves  in  large  numbers,  but  greatly  interfere  with  and  obstruct 
the  work  of  reproduction.  This  superfluity  of  males,  therefore,  may 
be  taken  not  only  without  injury,  but  with  positive  benefit  to  the  herd. 
It  is  obvicms  that  it  is  only  by  diminishing  the  birthrate  that  the  nor- 
mal numbers  of  the  herd  can  be  injuriously  affected.  If  the  seals  were 
not  interfered  with  by  man  the  herd  would  increase  in  number,  until 
by  the  operation  of  natural  conditions  tending  to  restrict  increase,  and 
which  operate  with  accumtilating  force  as  the  numbers  become  large, 
such  as  deficiency  of  food,  want  of  convenient  room  on  the  breeding 
places,  the  occupation  of  the  males  in  destructive  warfare  among  them- 
selves, which  must  greatly  interfere  with  the  work  of  reproduction,  the 
deaths  become  equal  to  the  births.  The  numbers  of  the  herd  will, 
other  things  being  unchanged,  then  remain  constant.  This  is  so  clearly 
explained  in  the  Report  of  the  Commissioners  of  the  United  States  that 
it  is  unnecessary  to  further  enlarge  upon  it  here.* 

Disregarding  the  causes,  othei  than  the  interference  of  man,  which 
may  operate  to  reduce  the  numbers  of  the  herd,  such  as  killer- whales 
or  other  enemies,  or  insufficiency  of  food,  or  disease,  matters  concerning 
which  we  have  little  or  no  knowledge,  it  is  manifest  that  the  killing  of 
a  single  breeding  female  must,  pro  tanto,  operate  to  diminish  the  num- 
ber of  births  and  thus  tend  tow,»rds  the  destruction  of  the  animal.  We 
need  go  no  further.  The  conclusion  from  this  single  fact  is  certain  and 
irresistible.  Pelagic  sealing  means  the  kiUing,  principally  of  females 
and  breeding  females;  and  if  practiced  to  such  an  extent  as  to  sacrifice 
such  ilemales  in  considerable  numbers,  must,  in  proportion  to  the  num- 
bers ScOrificed,  work  a  destruction  of  the  herd;  and  the  question  when 
the  destruction  will  be  so  complete  as  to  amount  to  a  sweeping  away  of 
the  seals  as  a  subject  of  value  in  commerce  is  a  question  of  time  only. 

It  is  respectfully  submitted  to  this  Tribunal  that  right  hero  is  an  end 
of  legitimate  debate.  Any  further  discussion  must  relate  to  a  question 
how  far  man  can  tamper  tcith  the  laws  of  nature  without  incurring  an 
ii^jurious  penalty.    The  answer  of  a  tribunal  bound  to  take  notice  of 

>  Case  of  the  United  States,  pp.  34G-350. 


th< 


CONCURRENT   REGULATIONS. 


199 


3:    .  X 


and  a<lminister  the  law  of  nature  sUouUl  be  instant  and  decisive  that 
he  can  not  tamper  with  them  at  all.  Uis  sole  businc»a  is  to  ascertain 
and  obey  them,  well  knowing,  as  he  does,  that  any  violation  of  them 
entails,  with  the  certainty  of  fate,  its  corresponding  punishment. 

But,  notwithstanding,  let  the  inquiry  hotc  noon  the  destruction  would 
be  complete  be  pursued.  And,  for  this  purpose,  let  it  be  assumed  that 
the  present  magnitude  of  the  pelagic  catch,  and  the  conse(iuent  destruc- 
tion of  females,  be  continued.  That  catch  amounted  in  181)1  to  68,000, 
according  to  the  report  of  the  British  Commissioners,'  and  the  number 
of  victims  dying  from  wounds  and  not  recovered  is  not  included.  Ii 
we  knew  what  the  number  of  bree<ling  females  in  the  herds  was  at  the 
same  time,  some  ground  for  conjecture  would  be  furnished.  But  of  this 
we  are  wholly  ignorant.  We  do  not  know  the  numbers  even  of  the 
whole  herd  at  that  or  any  other  time,  still  less  the  number  of  breeding 
females.  All  conjectures  upon  these  points  are  wild  and  untrustworthy. 
But  there  are  some  facts  within  our  knowledge  which  throw  a  «^ertain 
measure  of  light  upon  the  inquiry.  We  know  something  concerning 
the  average  drafts  made  by  the  Kussians  during  their  occupation  ol 
the  islands,  and  which  were  confined  to  nonbreeding  males. 

According  to  the  Report  of  the  British  Commissioners  the  average 
annual  draft  for  the  eighty-one  years  oi  Russian  occupation  was  34,000.* 
But  inasmuch  as  this  includes  long  periods  of  abstinence  made  neces- 
sary by  the  depletion  of  the  herd,  from  exceptional  or  unknown  causes, 
it  would  probably  be  nearer  to  the  truth  to  place  the  usual  draft  un- 
der the  Russian  occupancy  at  from  50,000  to  75,000.  And  during  this 
period  tlie  draft  was  often  made  smaller  than  it  might  safely  have  been^ 
by  reason  of  a  diminished  demand  in  the  market.  The  smaller  num- 
ber, however,  would,  obviously,  be  less  favorable  to  any  indulgence  ot 
pelagic  sealing.  We  also  know  that  under  the  more  careful  manage- 
ment of  the  United  States  an  annual  draft  of  100.(M)0  was  made  with- 
out any  observed  serious  diminution  of  the  herd  until  after  pelagic  seal- 
ing had  assumed  large  proportions.  It  may,  therefore,  probably  be 
assumed  as  reasonably  certain  that  under  normal  conditions,  the  herd 
contains  »ueh  a  number  of  breeding  females  as  will  allow  an  annual  taking 
of  100,000  nonbreeding  males,  provided  pelagic  sealing  is  prohibited,  and 
that  this  draft  of  100,000  is  the  limit  of  nondestructive  capture.  Taking 
the  pelagic  catch  of  1891,  which  was  68,000,  there  must  be  added  to  it 
the  number  killed  and  not  recovered;  which,  as  we  wish  to  keep  very 


>  Pago  207. 


*PBg»& 


'  ,t 


mi 


m  I*. 


': 


^00 


ARGUMENT  OF  TfiE   UNITED  STATED. 


5 


fair  witliin  the  truth,  may  be  taken  aft  one  in  every  four.  The  number 
68,000  represents,  therefore,  three-fourths  only  of  tlie  total  killed,  which 
would  thus  amount  to  68,000  plus  22,666,  or  90,666.  Of  this  number,  ob- 
serving the  same  cuntion  in  statement,  at  least  three- fourths  are  females, 
which  would  thus  number  68,000,  or  the  number  actually  recovered. 
How  many  of  these  may  be  barren  females,  there  is  no  means  of  as- 
certaining. We  have  no  reas<m  to  suppose  that  the  number  is  con- 
siderable. 

The  question  whether  it  would  take  a  long  or  short  i)eriod  to  sweep 
away  the  herd  if  68,000  females  were  aotusiUy  taken  from  them  each 
year  fsmlnhes  its  own  answer.  The  same  annual  subtraction  irom  a 
constantly  diminishing  sum  would  be  an  accelerating  progress  of  de- 
struction which  would  soon  complete  its  woi-k,  even  if  all  taking  of  seals 
on  the  land  were  prohibited.  The  only  cause  tending  to  moderate  the 
rapidity  of  the  destruction  would  be  the  increasing  difiiculty  uf  secur- 
ing the  annual  68,000  with  the  diminishing  number  of  females;  but  as 
this  number  diminished,  the  draft  would  be  proportionately  larger ;  and 
even  this  check  upon  the  destruction  would  be  done  away  with  by  the 
increasing  force  employed  in  the  pelagic  slaughter,  so  long  as  the  jrar- 
snit  held  out  a  chance  of  profit;  and  the  constantly  increasing  price  of 
skins — the  sure  result  of  a  diminution  of  the  supply  in  the  market — 
would  help  to  stimulate  the  prosecution  of  the  work. 

It  is  no  longer  matter  of  wonder  that  the  much  smiUler  pelagic  catch, 
amounting  in  1882  to  12,000,  and  annually  increasing  until  it  amounted 
in  1887  to  37,500,'  had  produced  an  effect  which  became  distinctly  man- 
ifest at  the  breeding  places  in  1889  and  1890,  by  the  difficulty  of  finding 
the  regular  number  of  100,000  young  males  for  the  purpose  of  slaughter, 
\s  liich  led  to  an  order  to  arrest  the  further  killing.  It  would  be  there 
that  the  invasion  upon  the  numbers  of  the  herd  would  be  first  observable. 
No  one  could  tell  from  any  survey  of  the  whole  herd,  stretched  out  over  in 
the  aggregate  some  10  miles  in  extent,  and  presenting  differing  appear- 
ances from  time  to  time,  that  the  numbers  had  diminished  until  the 
diminution  had  reached  an  advanced  stage;  but  any  considerable 
deerease  in  fhe  number  of  breeding  females,  involving,  as  it  would,  a 
decrease  of  births,  would  soon  become  manifest  in  the  crucial  practical 
test  of  selecting  the  quota  of  kiliable  young  males.* 

But  counsel  for  Great  Britain  may  protest  that  it  is  not  to  the  pur- 


•Rnport  of  Brit.  Com.,  p.  207. 

■Report  of  Am.  Com.,  Case  of  the  United  States,  pp.  341-345. 


CONClJRRfiKT  REGULATIONS. 


201 


t)osp  to  discuss  the  eflfecta  of  jtreaent  pelagic  slaughter,  becanse  every- 
one concedes  that  it  is  destnictive  and  should  be  restricted.  It  is  true 
that  this  is  admitted  even  by  the  Commissioners  of  Great  Britain, 
although  they  assert  that  the  destruction  is  in  part  imputable  to  exces- 
sive killing  of  males  upon  the  islands;  but  it  is  none  the  less  proper 
that,  in  the  inquiry  we  are  now  upon,  how  noon  a  destructive  method 
of  capture  will  result  in  complete  destruction,  we  should  Hgin  with  a 
degree  of  it  admitted  to  be  speedily  fatal.  It  tends  to  simplify  the  in- 
quiry by  drawling  attention  to  the  point  how  far  any  suggcsttid  meth- 
ods of  destruction  will  firrest  this  fatal  destruction  of  females. 

The  problem,  of  course,  is  to  devise  some  method  of  pelagic  sealing 
which  will  prevent  this  measure  of  destruction,  or  anything  approach- 
ing it.  We  must  here  turn  our  attention  to  the  methods  suggested  by 
the  British  Commissioners.  They  have  exercised  their  ingenuity  to  the 
utmost  upon  this  point,  ajid  if  the  measures  proposed  by  them  are  in- 
adequate, we  may  reasonsibly  infer  that  no  sufficiently  effective  ones 
can  be  devised.  The  final  result  of  their  effwts  is  embodied  in  what  is 
termed  by  them  "  Specific  scheme  of  Regulations  recommended."  This 
is  contained  in  the  following  paragraphs  of  their  Report: 

155.  In  view  of  the  actual  condition  of  seal  life  as  it  presents  itself 
to  us  at  the  present  time  we  believe  that  the  requisite  degree  of  protec- 
tion would  be  afforded  by  the  application  of  the  following  specific  limi- 
tations at  shore  and  at  sea: 

{a)  The  maximum  number  of  seals  to  be  taken  on  the  Pribilof  Is- 
lands to  be  fixed  at  50,000. 

(ft)  A  zone  of  protected  waters  to  be  established,  extending  to  a  dis- 
tance of  20  nautical  miles  from  the  islands. 

(c)  A  close  season  to  be  i)rovide(l,  extending  frpm  the  15th  Septem- 
ber to  the  1st  May  in  each  year,  during  which  all  kii^ing  of  seals  shall 
be  prohibited,  with  the  additional  provision  that  noafealing  vessel  shall 
enter  Behring  Sea  before  the  Ist  July  in  each  year. 

15().  Respecting  the  compensatory  feature  of  such  specific  regulations, 
it  is  believed  that  a  just  scale  of  equivalency  as  between  shore  and  sea 
sealing  would  be  found,  and  a  com])lete  check  established  against  any 
undue  diminution  of  seals,  by  adopting  the  following  as  a  unit  of  com- 
pensatory regulation : 

For  each  decrease  of  10,000  in  the  number  fixed  for  killing  on  the 
islands,  an  increase  of  10  nautical  miles  to  be  given  to  the  width  of 
protected  waters  about  the  islands.  The  minimum  number  to  be  fixed 
lor  killing  on  the  islands  to  be  10,000,  corresponding  to  a  maximum 
v/idtli  of  protected  waters  of  60  nautical  miles. 

157.  The  above  regulations  represent  measures  at  sea  and  ashore 
suffi<:iently  equivalent  for  all  practical  purposes,  and  probably  embody 
or  provide  for  regulations  a«  applied  to  sealing  on  the  high  seas  as 
stringent  as  would  be  admitted  by  any  maritime  power,  whether  di« 
rectly  or  only  potentially  interested.' 

'Beport  of  Br.  Com.,  p.  25. 


'11 


m^. 


202 


ARGUMENT   OP   THE    UNITED    STATES. 


The  flrafc  ohservatiou  in  relation  totliis  suggested  sehemo  wliieh  wo 
have  to  make,  is  that  it  begins  with  a  restriction,  not  upon  pelagic  seal- 
ing, but  upon  the  taking  of  seals  ujyon  the  Prihilof  Inlands,  proposing 
a  restriction  of  tliat  to  50,000  annually.  This  is  wliolly  inadmissible. 
Whatever  the  distinguished  Commissioners  may  tliink  proper  or  desir- 
able in  the  way  of  restriction  upon  the  action  of  the  United  States 
upon  its  own  soil,  it  never  occurred  to  the  (lovernment  of  Great  Brit- 
ain to  ask  that  tliat  nation  should  submit  tlie  exercise  of  its  sovereign 
power  to  the  authority  of  any  tribunal;  nor  have  we  any  reason  to  sup- 
pose that  the  diplomatic  representatives  of  Great  Britain,  at  any  time 
in  the  course  of  the  negotiations  which  resulted  in  the  Treaty,  imagined 
that  any  admissible  scheme  of  regulations  could  embrace  a  limitation 
upon  the  killing  of  superfluous  males  upon  the  land,  to  the  end  that 
females  might  be  killed  upon  the  sea.  It  is  enough  to  say  thjit  the 
Treaty  strictly  confines  the  regulations  which  the  Tribunal  may  consider 
to  such  as  are  ''outside  the  jurisdictional  limits  of  the  respective  gov- 
ernments." 

But  let  this  pass  in  the  present  discussion,  for  we  desire  to  consider 
the  suflBciency  of  the  proposed  regulations  upon  the  face  of  them.  In 
substance,  the  scheme  purports  to  be,  so  far  as  i)elagic  sealing  is  con- 
cerned, a  mere  interposition  of  additional  difficulties  in  the  prosecution 
of  it  by  restricting  it  in  place  and  time.  It  establishes  a  prohibited 
zone,  with  a  radius  of  20  miles  fi-oni  the  islands,  confines  all  pelagic 
sealing  to  the  period  between  the  Ist  of  May  and  the  15th  of  September 
in  each  year,  and  forbids  entrance  into  Bering  Sea  before  the  1st  of  July 
in  any  year.  There  are  several  observations  immediately  suggested  by 
this  scheme,  which  is  de<;lared  by  the  contrivers  of  it  to  afford  "the 
requisite  degree  of  protection." 


(1)  In  the  first  place  it  does  not  purport  to  restrict  the  number  of  seals 
80  killed  at  sea  to  less  than  G8,000,  unless  the  killing  of  that  number  is 
•practically  impossible  under  the  conditions  imiwsed.  What  guaranty 
or  assurance  is  there  th.at  68,000  females  will  not  still  be  slaughtered 
under  the  limited  conditions?  All  that  is  requisite  to  this  end  is  the 
employment  of  an  additional  force  of  vessels  and  men,  and  this  is  easily 
possible,  and  will  certainly  be  supplied  if  the  ^ncc  ofsTcins  will  justify 
it.  We  know  this  would  be  the  case,  for  it  must  be  taken  as  certain 
that  the  force  of  pelagic  sealers  would  be  largely  increased  at  the  price 


CONCURRENT   REGULATIONS. 


203 


which  9kln3  commandod  in  1891,  when  0.S,(){)1>  were  taken  at  soa.  The 
force  had  boeti  steadily  iaoreasiiig  for  years,  and  tliore  is  no  reason  for 
abelief  that  the  progress  would  have  ceased.  Men  will  eagerly  engage 
in  such  pursuits  long  after  the  certainty  of  a  profit  disappears.  It  still 
has  great  prizes,  and  it  is  these  wliich  tempt  enterprise  and  risk.  More 
than  this,  the  scheme  scarcely  inttMposcs  any  additional  difllcnltiea. 
It  cuts  ott"  very  little  of  tlie  time  during  whicii  pelagic  sealing  is  now  or 
can  be  prosecuted  witli  advantage.  A  very  small  additional  force  woula 
sulHce  to  raise  the  capture  to  the  amount  obtainable  by  the  present  force 
operating  without  restriction. 

But,  Anally,  and  decisively,  the  scheme  itself  furnishes  a  cause  cer- 
tain to  bring  to  the  work  of  destruction  a  force  which  would  carry  the 
slaughter  far  beyond  the  limit  even  of  08,000  females  i)cr  annum.  It 
cuts  oft"  from  the  market  the  supply  from  the  breeding  islands  of  50,OtK) 
skins,  leaving  that  enormous  deliciency  to  be  supplied  by  the  pelagic 
sealers!  What  greater  boon  could  they  ask?  If  these  Commissioners 
had  deliberately  set  about  to  contrive  a  project  for  the  stimulation  of 
pelagic  sealing,  and  for  the  delight  of  those  engaged  in  it,  they  could 
have  devised  nothing  so  well  calculated  for  that  end  as  to  take  out  of 
the  market  .10,000  skins  of  the  supply  from  the  Pribilof  Islands,  when 
the  price  stands  at  125  shillings  per  skiu,^  and  give  the  ])elagic  sealers 
a  chance  to  make  up  the  deflciency  bet.veen  the  1st  of  May  and  the  1st 
of  September,  with  the  privilege  of  entering  Bering  Sea  on  the  1st  of 
July,  and  of  approaching  the  Pribilof  Islands  to  a  distance  of  20  miles 
therefrom.  Indeed,  with  such  temi)tations,  they  would  greatly  incrcise 
the  catch  over  present  limits,  even  if  they  were  excluded  froia  Bering 
Sea  altogether.  Their  catch  in  the  North  Pacilio  during  the  present 
year  has,  it  is  believed,  amounted  to  nearly  that. 

But  we  must  not  do  the  Commissioners  the  injustice  of  confining 
criticism  to  a  part  of  their  scheme.  It  includes  another  feature  of 
restriction,  which  is  indicated  as  furnishing  "a  just  scale  of  equiva- 
lency as  between  shore  and  sea  sealing,"  and  "  a  complete  check  against 
undue  diminution  of  seals."  This  is  that  the  United  States  may  pro- 
cure an  addition  of  ten  nautical  miles  to  the  radius  of  the  zone  of  protec- 
tion around  the  islands  for  each  reduction  of  10,000  below  the  maximum 
of  60,000  to  be  allowed  to  be  killed  upon  the  islands,  so  that  a  pro- 
tected zone  of  a  radius  of  60  miles    might  be  obtained  by  a  volun- 


'S  h 


1  ^  r.. 


d^-\. 


^>* 


■Case  of  the  United  States,  Appendix,  Vol.  II,  p.  561. 


204 


ABOUMBNT  OF  THE  UHITBD  BTATEfl. 


^ 


tary  redaction  of  the  number  to  be  taken  on  the  islands  to  10,000. 
Of  oottrse,  with  a  farther  withdrawal  flrom  the  market  of  the  supply 
furnished  by  the  iskknds,  to  the  amount  of  40,000  skins  annually,  that 
is  to  say,  by  leaving  practically  the  whole  market  to  be  supplied  by  the 
peliigic  sealers,  a  force  in  the  shape  of  vessels  and  men  would  speedily 
show  itself  sufficient  to  slaughter,  not  60,000  females  a  season,  bnt 
100,000,  and  even  more,  between  the  first  of  May  and  the  15th  of  Sep- 
tember. But  we  fail  to  perceivetheu8e,ortheconBistenoy,of  imposinga 
limit  to  which  such  voluntary  reductions  of  slaughter  on  the  breeding 
islands  should  be  carried  by  making  the  minimum  10,000.  Why  should 
the  United  States  not  be  permitted,  i^  they  desired,  to  purchase  a  pro- 
tected zone  of  60  miles  radius  by  g  ig  up  the  right  to  slaughter  a 
single  sealf  The  scheme  had  as  its  sole  merit  some  poor  pretension  in 
the  way  of  comicality.    Why  should  this  be  thrown  away  t 

(2)  We  may  be  told  that  we  are  really.  If  not  avowedly,  imputing  to 
these  Commissioners  an  intention  to  protect  and  promote  «ue  interests 
of  the  Ganadiui  sealers,  and  that  this  is  nniair;  that  if  they  are  labor- 
ing in  behalf  of  pelagic* sealing,  they  are  working  as  much  for  the  inter- 
est of  citizens  of  the  United  States  as  for  Oauadians,  inasmuch  as 
pelagic  sealing  is  as  open  to  the  former  as  it  is  to  the  latter.  We  do 
not  forget  the  suggestion  of  the  Gommissioners  to  this  effect,'  and  we 
remember  jit  the  same  time,  what  was  well  known  to  them,  that  this 
occupation  is  not  unreservedly  open  to  citizens  of  the  United  States.  That 
nation  deems  itselt'bound  by  the  spirit  and  principlesof  the  law  of  nature, 
holds  itself  under  an  obligation  to  use  the  natural  advantages  which 
have  fallen  to  its  lot,  by  cultivating  this  useful  race  of  animals  to  the 
end  that  it  may  furnish  its  entire  increase  to  those  for  whom  nature  in- 
tended it,  wherever  they  dwell,  and  without  danger  to  the  stock.  It 
holds,  as  the  law  of  nature  holds,  that  the  destruction  of  the  species  by 
barbarous  and  indiscriminate  slaughter  is  a  crime,  and  punishes  it  with 
severe  penalties.  Its  enactments  adopted  when  it  was  supposed  that 
the  only  danger  of  illegitimate  slaughter  was  confined  to  Bering  Sea 
were  supposed  to  be  adequate  to  prevent  all  sucb  slaughter.  Are  the 
United  States  to  be  deprived  of  the  benefit  of  the  seals  unless  they 
choose  to  abandon  and  repudiate  the  plain  obligations  of  morality  and 
natural  lawf 

>  Beport  of  Br.  Com.,  p.  20. 


T 


OONCUBHENT   REGULATIONS. 


2()r) 


(3)  Bnt  what  would  be  the  ooit  of  this  acheinet  Some,  not  Imln-d 
very  large,  additional  difficulties  would  be  iiiterpiinod  in  obtaiiiiii<;  t\w 
present  pelaipc  catoh  of  68,000.  It  would  require  h  sonirwhat  l!ti-;;«>i  in- 
vefltment  of  capital  iu  vessels  and  appliauces,  and  »  sonunvhiit  ^^ciitt^ 
expenditure  iu  wages.  This,  as  has  been  shown,  would  ho  tally  rtoni 
bursed  to  the  sealers,  with  a  largo  additional  profit,  by  nutans  nf  tlio 
subtraction  f^om  the  marlcet  of  50,000  skins  now  fnniished  ti-oiii  the 
Pribilof  Islands,  and  the  consequent  incrcnsv  of  j>m'e.  This  int^i ease 
of  price  must  of  course  be  paid  by  t lie  connuniei;  We  can  not  well  con- 
jecture the  amount  of  it.  It  could  liardly  be  h^ss,  if  we  may  roly  niK>n 
tlie  teachings  of  the  table  of  prices,'  than  $10  per  skin,  and  miglit 
amount  to  much  more.  This  additional  cost,  increased  at  every  stage 
in  the  process  of  manufacture  and  exchange,  might  easily  add  $130  to 
the  price  of  the  f>kin  when  it  comes  to  the  consumer,  and  tlins  the 
world  would  be  burdened  by  an  additional  <?harge  for  100,000  skins  to 
the  amount  ol  the  easily  possible  sum  of  $3,000,000.  And  what  would 
it  cost  to  ma intaiu  the  naoal  police  required  to  enforce  this  schemef 
How  many  armed  steamers  would  be  needed  to  guard  ett'ectually 
against  the  entrance  of  a  trespasser  witliin  a  prohibited  zone,  the  cir- 
cumference of  which  is  upwards  of  140  miles,  in  a  region  of  thick  and 
almost  perpetual  fogs?  A  million  of  dollars  annually  would  be  a  mod- 
erate estimate  of  the  expenditure  required,  and  this  nnist  be  i)aid  by 
somebody,  the  Commissioners  do  not  tell  us  by  whom. 

And /or  tr/tow  and  for  ichat  is  this  i)rodigious  tax  to  be  imposed? 
For  the  Cansulian  sealers  alone,  and  in  order  to  enable  them  to  nmke  a 
profit,  for  a  few  short  years,  by  the  total  destruction  of  a  race  of  use- 
ful animals!  If  the  assumption  of  such  a  burden  were  necessary,  in  or- 
der to  preserve  the  seals,  the  propriety  of  making  it  would  be  worthy 
of  consideration;  but  it  is  absolutely  no  misrepresentation  or  exaggera- 
tion to  say  that  it  would  be  a  price  paid,  not  for  their  preservation,  but 
for  their  more  speedy  extermination.  Not  a  dollar  of  this  enormous 
expenditure  is  needed  for  any  useful  purpose.  The  entire  increase  of 
all  the  herd  may  be  made  available  at  the  lowest  possible  price,  without 
endangering  the  stock  and  without  imposing  any  additional  burden 
upon  the  world,  by  simply  confining  the  capture  of  the  seals  tt)  the 
methods  allowed  by  natural  law.  Nor  is  the  expenditure  needed  even 
for  the  mischievous  purpose  of  killing  oflf  the  seals.  It  is  indeed  a  con- 
trivance by  which  that  result  would  be  hastened,  but  if  nothing  were 


;'M!i' 


m 


ill' 


•  Cma  of  tho  United  States,  Appcmdix,  Vol.  II,  p.  661. 


,'.M 


206 


AEGUMENT   OF   THE   UNITET)   STATES. 


doue,  and  pelagic  sealing  were  permitted  to  be  prosecuted  without  let 
or  biudiauce,  the  end  would  be  reached  nearly  as  soon. 

(4)  The  severity,  amounting  to  injustice,  in  the  operation  of  such  a 
scheme  would  be  worth  commenting  upon,  were  it  on  other  grounds  ad- 
missible. How  would  the  seider  know,  in  that  region  of  fog,  whether 
he  was  inside  or  outside  of  the  prohibited  liueH  The  opportunities  for 
taking  observations  are  rare.  It  maybe  said  that  he  should  take  good 
care  and  give  the  line  a  wide  inside  berth.  But  laws  should  take  no- 
tice of  the  weakness  of  men  in  the  face  of  temptation.  This  scheme 
would  be  a  lure  to  which  many  would  yield,  and  find  themselves  caught, 
even  when  they  intended  not  to  transgress. 


(5)  The  Conunissioners  of  Great  Britain  have  intheir  report  studiously 
avoided  the  real  problem,  which  it  was  their  business  to  solve.  That 
problem,  according  to  their  own  view,  was  to  devise  some  scheme  of  pe- 
lagic sealing  which  would  preserve  that  jiursuit,  and  at  the  same  time 
not  be  fatally  destructive  to  the  herd  of  seals.  True,  tliis  is  impossi- 
ble; but  it  was  not  so  in  their  view,  if  we  may  credit  their  confident 
statements.  They  should,  therefore,  have  first  fixed  ujiou  some  definite 
number  of  females  which  might  be  taken  annually  without  initiating 
a  gradual,  but  sure,  destruction,  and  then  devise  a  method  which 
should  restrict  the  capture  to  this  number.  This  is  the  method  pursued 
upon  the  Pribilof  Islands.  An  estimate  is  made  of  the  number  of  su- 
perfluous males  that  may  be  safely  taken,  and  the  annual  draft  is 
rigidly  ^united  to  thatnumber.  Had  the  Commissioners  attempted  this 
task,  the  utter  imi)ossibility  of  it  would  have  stood  self-exposed.  They 
would  have  been  immediately  confronted  with  two  refutations.  In  the 
first  place,  had  they  named  50,000,  or  40,000,  or  20,000,  or  even  10,000, 
females  as  a  number  whicli  might  be  annuallysacriliced  without  involv- 
ing a  sure  destruction,  the  sure  teachings  of  the  natural  laws  governing 
the  increase  of  such  animals  would  at  once  have  rejected  the  proposal. 

Those  laws  tell  us  tliat  no  females  must  be  taken.  It  is  not  from 
that  quarter  that  man  may  make  his  drafts  in  any  degree.  The  condi- 
tions are  far  more  rigidly  exacting  than  in  the  case  of  domestic  cattle. 
There  the  opi)ortunity  for  cultivation  is  unlimited.  It  may  be  prose- 
cuted tlirougliout  the  whole  world,  and  an  undue  abundance  be  speed- 
ily produced.  It  is  often  necessary  there  to  keep  down  the  stock  instead 
of  iucrcasiug  it,  aud  therefore  females  must  ueuessuiily  be  taken  to 


CONCUllliENT   REGULATIONS. 


207 


some  extent;  but  with  the  seals  the  case  is  far  otherwise.  There  are 
but  few  possible  places  in  which  the  animal  may  be  cultivated,  and  tiie 
march  of  destruction  has  greatly  reduced  these.  They  are  wholly  in- 
sufficient to  supply  the  demand  even  under  the  most  careful  and  pru- 
dent husbandry,  and  any  taking  whatever  from  breeding  females  i*? 
plainly  inadmissible.  This  is  of  itself  an  end  of  the  (piestion,  for  to  say 
that  pelagic  sealing  must  be  limited  to  a  catch  of  10,000  (and,  as  we 
have  seen,  in  pelagic  sealing  the  number  of  females  killed  equals  the 
whole  number  of  both  spxes  actually  recovered)  is  to  prohibit  it.  The 
game  would  no  lon-?er  '^e  worth  the  candle.  It  would  not  be  pursued 
under  such  conditions.  In  the  next  platie,  had  the  (Commissioners  fixed 
upon  any  definite  number,  it  would  be  absolutely  impossible  to  frame 
any  scheme  by  which  the  slaughter  could  be  limited  to  it.  Their  own 
wretched  device  of  a  limitation  of  the  pursuit  in  time  and  place,  much 
better  calculated  to  increase  than  to  restrict  the  slaughter,  is,  of  course, 
beneath  attention.  We  do  not  refer  to  the  inefficiency  of  their  partic- 
ular suggestions.  There  is  an  inherent  imjiossibility  which  no  inge- 
nuity, combined  with  a  supreme  desire  to  accomplish  the  purpose,  can 
siu-mouut. 

(6)  The  fundamental  error  of  the  Commissioners  of  Great  Britain,  as 
of  all  who  either  deceive  themselves,  or  attempt  to  deceive  others,  with 
tht^  illusion  that  it  is  possible  to  permit  in  any  degree  the  indiscriminate 
l^ursuitof  a  species  of  animals  like  the  seals,  so  eagerly  sought,  so  slow 
in  increase  and  so  defenseless  against  attack,  and  at  the  same  time  to 
preserve  the  race,  consists  in  assuming  that  the  teachings  of  nature 
can  be  replaced  by  the  cheap  devices  of  man.  The  first  and  oidy  busi- 
ness of  those  who,  like  the  Commissioners,  were  charged  with  the  duty 
of  ascertaining  and  declaring  what  measures  were  necessary  for  the 
preservation  of  this  animal  was  to  calmly  inquire  what  the  laws  of 
nature  were,  and  conform  to  them  unhesitatingly.  It  would  then  have 
been  seen  by  them  that  no  capture  whatever  of  such  animals  should  be 
allowed  except  ea])ture  regulated  iu  conformity  with  natural  laws;  and 
that  all  unrcgiilaH-i  capture  was  necessarily  destructive,  and  a  crime; 
that  there  could  be  regulated  capture  upon  the  land,  and  upon  the  land 
alone,  and  that  all  attempts  to  regulate  capture  on  the  sea  must  neces- 
sarily be  aborti  ve ;  that,  consequently,  the  only  regulation  to  be  made 
in  respect  to  ^  ;^lagic  sealing  was  to  prohibit  it  altogether,  which  is  tan- 
tamount to  the  award  of  i)ropcrty  to  the  proprietors  of  tlie  breeding 


si.ra 


.©& 


i.'i 


\m 


'M 


4 


®^l      If 


208 


ARGUMENT  OP  THE  UNITED   STATES. 


F 


grounds.  The  attempt  to  apply  regulations  in  the  nature  of  game  laws 
to  the  pursuit  of  such  animals  is  a  misdirected  effort,  founded  upon  a 
disregard  of  their  nature  and  habits.  They  are  not  like  wild  ducks,  or 
herring,  or  mackerel,  animals  over  which  man  has  no  control,  and  which 
reproduce  themselves  in  prodigious  numbers,  and  have  abundant  means 
of  eluding  pursuit,  and  which  can  not  be  cultivated  by  art  and  industry ; 
but  a  species  exhibitiug  all  the  conditions  r  equisite  to  property,  and 
which  must  be  treated  accordingly. 

(7)  This  error  is  not  imputable  to  ignorance  on  the  part  of  the  Com- 
missioners. It  does  not  arise  from  any  failure  to  take  notice  of  the 
nature  OiUd  habits  of  the  animal.  There  is,  indeed,  in  their  report  an 
avoidance,  which  appears  to  be  industrious,  of  any  special  inquiry  into 
the  nature  and  habits  of  seals,  with  the  view  of  ascertaining  and  report- 
ing for  the  information  of  this  Tribunal  whether  they  really  belong  to 
that  class  of  animals  which  are  the  fit  subjects  of  property,  or  that  of 
which  ownership  can  not  be  predicated,  and  which  cin,  consequently, 
be  protected  against  excessive  sacrifice,  only  by  the  rough  and  ineffect- 
ive expedient  of  game  laws;  but,  nevertheless,  they  fully  admit  that 
perfectly  effective  regulation  of  capture  is  easily  possible  at  the 
breeding  placos  and  tliere  alone.    They  say : 

116.  It  is,  moreover,  equally  clear  from  the  known  facts  that  efficient 
protection  is  mucn  more  easily  afforded  on  the  breeding  islands  than  at 
sea.  The  control  of  the  number  of  seals  killed  on  shore  might  easily 
be  made  absolute,  and  as  the  area  of  the  breedinfjf  islands  is  small,  it 
should  not  be  difficult  to  completely  safeguard  these  from  raiding  by 
outsiders,  and  from  other  illegal  acts.' 

What  i»  the  avowed  ground,  aside  from  the  assumed  right  of  individ- 
uals to  carry  on  pelagic  sealing,  upon  which  those  Commissioners  felt 
themselves  not  warranted  in  yielding  to  the  decisive  facts  thus  stated 
by  them,  and  declaring  that  a  perfect  protection  would  be  given  to  the 
seals  by  simply  prohibiting  capture  at  sea?  It  is,  to  shortly  snui  it 
up,  that  the  power  thus  possessed  by  the  occupants  of  the  breeding 
places  has  been  abused  in  the  past,  and  probably  will  be  in  the  future, 
by  an  excessive  slaughter  of  young  males.  It  is  that  the  United  States 
put  the  property  into  the  hands  of  lessees,  and  that,  although  the 
leases  are  long  ones,  yet  the  lessees  are  so  far  barbarians,  or  chil- 
dren, that  they  are  incapable  of  cotnprchciidiiig  their  own  interests, 

•Eoport  of  Br,  Com.,  p.  19. 


CONCURRENT   REGULATIONS. 


209 


and  incapsible  of  restraining  their  desire  for  present  enjoyment,  in  or- 
der to  secure  their  permanent  welfare;  and  that  the  United  States  Gov- 
ernment, which  has  a  supervising  control,  either  from  the  same  or  some 
other  unexplained  reason,  is  equally  incapal)le  of  protecting  its  own  in- 
terests and  discharging  its  duty  to  mankind  by  preserving  those  boun- 
ties of  nature  which  have  been  intrusted  to  its  Iceeping.  In  short, 
their  argument  is  that  those  means  which  nature  has  pointed  out,  and 
which  society  from  the  eax'liest  dawn  of  civilization  has  adopted  and 
followed,  for  the  purpose  of  preserving  the  gifts  of  nature  aiHl  making 
them  in  the  highest  degree  available  for  the  uses  of  man,  have,  m  this 
instance,  proved  a  failure;  that  the  force  of  the  universal  motive  of 
self-interest  has,  in  this  instance,  not  been  etfective  with  the  American 
people,  and  consequently  an  occasion  has  arisen  for  the  invention,  by 
the  wisdom  and  ingenuity  of  these  Commissioners,  of  some  device  bet- 
ter adapted  to  the  desired  object !  This  is  no  perversion  or  exaggera- 
tion of  the  argument  of  this  report.  It  i»iay  be  left  to  fall  from  its  in- 
trinsic weakness,  not  to  say  absurdity. 


(8)  We  are  reluctant  to  make  any  reference  to  motives;  but,  where 
opinions  are,  as  in  this  case,  made  evidence,  the  question  of  good  faith- 
is  necessarily  relevant.  Why  is  it  that  these  Commissioners  have 
chosen  to  disregard  the  plain  dictates  of  reason  and  natural  laws  which 
they  were  bound  to  accei)t,  and  to  recommend  some  cheap  devices  in 
their  place,  when  they  so  clearly  perceived  those  dictates'?  We  are  not 
permitted  to  think  that  this  was  in  conscious  violation  of  duty,  if  any 
other  explanation  is  possible.  The  only  apology  we  can  find  comes 
from  the  fact,  clearly  apparent  upon  nearly  every  page  of  their  report, 
that  the  predominating  interest  which  they  conceived  themselves  bound 
to  regard  was  not  the  preservation  of  the  seals,  but  the  protection  of 
the  Canadian  sealers.  This  explanation  at  once  iiccounts  for  all  their 
extraordinary  recommendations  and  all  their  varying  inconsistencies. 
Hence  every  degree  of  restraint  upon  pelagic  sealing  is  reluctantly 
conceded,  and  yielded  only  when  it  is  compensated  for,  and  more  than 
compensated  for,  by  an  added  restriction  of  the  supply  furnished  to 
the  market  from  the  breeding  islands.  As  the  work  of  the  pelagic 
sealers  is  on  the  one  hand  restricted  in  time  or  i>la(!e,  and  thus  discour- 
aged, it  is  on  the  other  stimulated  by  the  certainty  of  a  better  market 
and  a  richer  reward.  So  persistently  and  exclusively  have  they  kept 
this  policy  before  them  as  their  main  object,  that  an  ideal  has  been 
14719 14 


'Mi  t 


Hi 


'Iff 


't. 


210 


ARGUMENT   OF   THE    UNITED   STATES. 


formed  in  their  miuds  wUicU  they  openly  avow,  and  to  attain  which  is 
tlieir  constant  effort.  This  Meal  is  that  all  taking  of  seals  on  land 
should  be  i>rohibited,  and  i)elaijic  sealing  be  made  the  only  lawful  mode 
of  capture. 

They  thus  express  themselves:  "  It  has  been  pointed  out,  and  we  be- 
lieve it  to  be  probable,  that  if  all  killing  of  seals  were  prohibited  on 
the  breeding  islands,  and  these  were  strictly  protected  and  safe-guarded 
against  encroachment  of  any  kind,  sealing  at  sea  might  be  indejinitely 
continued  icithout  any  notable  diminution,  in  consequence  of  the  self- 
regulative  tendency  of  this  industry."' 

And,  suggesting,  as  the  only  objection  to  this  policy  which  occurs  to 
them,  that  it  might  be  too  much  to  expect  of  the  T^'aited  States  to  thus 
guard  the  islands  and  support  a  native  population  of  300  at  its  own 
expense,  they  continue:  "It  maybe  noted,  however,  that  some  such 
arrangement  would  offer,  perhaps,  the  best  and  simplest  solution  of  ilie 
present  conflict  of  interests,  for  the  citizens  of  the  United  States  would 
still  possess  equal  rights  with  all  others  to  take  seals  at  sea,  and  in 
consequence  of  the  proximity  of  their  territory  to  the  sealing  grounds 
they  would  probably  become  the  principal  beneficiaries !  "^ 

And  they  finally  come  to  the  conclusion  that  any  taking  of  seals  at 
the  breeding  places  is  aii  error  for  which  there  is  no  defense  except  long 
usage,  and  even  that  they  regard  as  a  doubtful  apology.    They  say : 

While  the  circumstance  that  long  usage  may,  in  a  measure,  be  con- 
sidered as  justifying  the  custom  of  killing  fur-seals  on  the  breeding  is- 
lands, many  facts  now  known  respecting  the  life  history  of  the  animal 
itself,  with  valid  inferences  drawn  from  the  results  of  the  disturbance 
of  other  animals  upon  their  breeding  places,  as  well  as  those  made  ob- 
vious by  the  new  conditions  which  have  .arisen  in  consequence  of  the 
development  of^pelagic  sealing,  point  to  the  conclusion  that  the  breed- 
ing islands  should,  if  possible,  remain  undisturbed  and  inviolate.^ 

These  references  to  the  opinions  expressed  in  the  reportof  the  Commis- 
sioners of  Great  Britain,  when  taken  together  with  the  scheme  recom- 
mended by  them,  leave  no  room  for  doubt  that  the  defense  of  the  Cana- 
dian sealers  was,  from  first  to  last,  their  predominating  motive,  and 
enable  us  to  make  for  them  the  apology  that  they  conceived  that  this 
was  the  duty  with  which  they  were  especially  charged.  If  this  be  the 
facti,  it  is  easy  to  perceive  how  all  their  reasonings  and  recommenda- 
tions should  receive  a  color  and  character.    We  feel  obliged  to  say  that 

»Koport  of  Br.  Com.,  p  IQ,  see.  121. 
•  Report  of  Br.  Com.,  j,  ^0,  sec.  125. 
■Report  of  Br.  Com.,  p.  27,  aeo.  16d. 


CONV.UKRENT    REGULATIONS. 


211 


we  can  perceive  no  other  ground  uijou  which  theii-  action  may  be  made 
consistent  with  good  faith. 


(9)  But  what  are  their  avowed  reasons,  if  any,  for  forming  this  ideal 
of  an  exclusive  adoption  of  pelagic  sealing  as  a  proper  sclicme  of  regula- 
tions for  preserving  the  seals?  We  can  gather  from  the  pages  of  their 
report  these  three: 

(a)  That  pelagic  sealing  is  a  national  or  common  right,  which  can  not 
be  taken  away. 

(&)  That  pelagic  sealing  has  a  "self-regulating  tendency.'" 

(c)  That  sealing  on  the  breeding  places  is  destructive,  because  of  the 
excessive  slaughter  of  young  males,  which,  as  they  allege,  is  and  will 
be  indulged  in,  although  it  need  not  be. 

The  first  of  these  reasons  is  not  relevant  here,  nor  should  it  have 
had  any  place  in  the  consideration  of  these  Commissioners.  It  was  a 
matter  committed  to  the  determination  of  other  i)arties,  and  is  else- 
where discussed  by  us.  It  may,  however,  be  here  observed  that  if  it 
be  a  natural  right  of  citizens  of  Great  Britain,  it  must  be  held,  as  all 
other  rights  are,  in  subordination  to  the  power  of  governments  to  enact 
legislation  to  preserve  the  useful  races  of  animals,  and  Great  Britain 
jnay  certainly,  if  she  pleases,  proliibit  lier  citizens  from  exercising  it, 
as  the  United  States  do.  And  if  it  be  the  subjecjt  of  governmental 
restriction,  as  the  commissioners  themselves  propose  to  mal^e  it,  it  may 
be  also  prohibited  by  governmental  regulation. 

The  third  ground  we  have  already  considered.  Unfounded  in  fact, 
repugnant  to  reason,  absolutely  contradicted  by  the  experience  of 
nearly  a  century  on  the  Pribilof  Islands,  and,  as  the  Commissioners 
themselves  admit,  by  that  on  the  Commander  Islands  for  a  similar 
period,'^  we  dismiss  it  without  further  notice. 

The  second  ground,  the  alleged  "  self- regulative  tendency,"  may  be 
briefly  noticed.  What  is  this  asserted  "  self-regulating  tendencyV^  We 
must  describe  it  in  the  language  of  the  Commissioners  themselves. 
They  say: 

"  In  sealing  at  scathe  conditions  are  categorically  different,  for  it  is 
evident  that  by  reason  of  the  ven  method  of  hunting,  the  profits  nuist 
decrease,  other  things  being  equal,  in  a  ratio  much  greater  than  that 


-,t- 


,':'l 


\'¥ 


I!'!  i'l  ' 


'  Report  of  Br.  Com.,  p.  20,  sec.  121.        <  Report  of  Br.  Com.,  p.  15,  seo.  92. 


212 


ARGUMENT  OF  THE  UNITED  STATES. 


r 


of  any  decrease  in  the  numbers  of  seals,  and  that  there  is,  therefore, 
inlierent  an  automatic  principle  of  reffulation  Kiiflieient  to  prevent  the 
posnible  destruction  of  the  industry  if  practiced  only  at  sea."  * 

But  what  if  other  things  should  not  be  equal,  as  they  certainly  would 
not  be?  What  if,  as  the  supposed  difficulties  in  capturing  seals  were 
increased,  making  it  impossible  for  the  same  force  to  make  tlie  same 
catch  in  the  same  time,  .and  thus  diminishing  the  supply  offered  in  the 
market,  the  price  of  skins  should  rise,  as  it  certainly  would?  Would 
the  effect  be  anything  except  to  stimulate  the  pursuit,  bring  into  play 
a  greater  energy  and  skill,  attract  a  larger  force,  and  thus  lead  to  an 
equal,  and  probably  a  much  larger  catch?  In  the  whale  fishery  the 
price  of  the  product  continually  rising  so  stimulated  the  pursuit  as  to 
attract  a  coutiuually  augmc  iting  force,  with  the  result  of  nearly  exter- 
minating some  of  the  species.  The  fate  of  the  sea  otter  had  been  the 
same.  But  we  need  not  go  further  than  the  statistical  tables  of  pelagic 
Sdaling  furnished  by  the  Commissioners.  Whatever  may  have  been  the 
increase  of  difficulty  in  obtaining  seals  consequent  upon  the  increased 
pursuit,  the  price  has  afforded  a  stimulus  sufficient  to  bring  into  the 
field  a  continually  augmenting  force,  and  has  thus  brought  the  aggre- 
gate of  the  pelagic  catch  from  12,000  in  1882  to  08,000  iu  1891. 


(10.)  In  conclusion  it  is  submitted  that  the  scheme  proposed  by  the 
Commissioners  of  Great  Britain  is  a  contrivance,  not  for  the  preservation 
of  the  seals,  which  was  by  the  Treaty  made  the  sole  object  of  their  in- 
quiries and  labors,  but  for  the  promotion  of  pelagic  scaling,  and,  conse- 
quently, for  the  destruction  of  the  seals.  This  is  its  character  even  upon 
their  own  views.  They  insist  that  the  slaughter  of  100,000  young  males 
upon  the  Probilof  Islands  was,  even  before  pelagic  sealing  was  prosecu- 
ted, an  excessive  draft  rapidly  tending  to  a  destruction  of  the  herd; 
and  yet  their  scheme  directly  and  necessarily  involves  a  slaughter  of 
m.any  more  than  100,000  seals  of  which  more  than  half  will  be  females. 

It  is  believed  that  the  Tribunal  will  not  fail  to  perceive  that  a  thor- 
ough consideration  of  the  question  of  the  feasibility  of  any  system  of 
regulating  pelagic  sealing  which  would  permit  that  business  to  be 
prosecuted,  and  yet  secure  the  herd  from  extermination,  ending,  as  it 
must,  in  a  conviction  that  such  a  system  is  not  feasible,  leads,  by  a 
somewhat  different  path,  to  the  same  conclusion  which  is  reached  by  a 


>  Bepoit  of  lir.  Cora.,  p.  19,  hoo.  118. 


CONCURKENT   REGULATIONS. 


213 


direct  iuquii-y  into  tlio  question  of  property.  It  fully  establishes  the 
conclusion  that  the  only  ** concurrent  regulation"  which  can  preserve 
the  seal  hertls  from  practical  exterininatiou  is  one  simply  and  absolutely 
prohibitive  of  pelagic  sealing,  and  that  this  therefore  is  necessary.  And 
tliis  is  tantamount,  in  its  effect,  to  the  recognition  of  a  i)roi)crty  inter- 
est in  the  proprietors  of  the  breeding  islands. 

If  a  bona  fide  effort  were  made  to  allow  pelagic  sealing  under  condi- 
tions which  would  reduce  its  destructive  effect  to  a  point  where  it 
might  be  neglected  as  unsubstantial  or  insignificant,  real,  not  pretended, 
restriction  would  be  secured.  Tlie  effort  would  be  to  falce  away,  not 
to  add,  inducements  to  embark  in  it.  The  method  would  be  to  discour- 
age it,  to  throw  difficiUties  in  the  way  of  it,  to  so  restrict  it  in  place  or 
time,  or  both,  that  little  chance  for  profit  would  remain.  To  this  end 
a  prohibition  during  Marcli  and  April  would  be  wholly  useless.  It 
could  not  be  safely  allowed  even  for  a  single  month  in  the  period  from 
April  to  October.  The  privilege  must  be  limited  to  stormy  weather 
which  repels  enterprise.  And  this  is  to  prohibit.  If  we  mean  to  pre- 
serve the  seals,  we  must  submit  to  be  governed  by  those  natural  laws 
upon  an  observance  of  which  their  preservation  depends.  These  teach, 
with  a  directness  and  certainty  which  can  not  be  misunderstood,  two 
things. 

First.  In  the  case  of  animals  over  whom  man  has  no  control,  such  as 
most  wild  animals  are,  if  they  are  in  danger  of  destruction  from  too  eager 
pursuit,  restrictious  in  tlie  nature  of  game  laws,  which  operate  simply 
to  diminish  the  destruction,  without  changing  its  character,  are  the 
only  preventive  measure  which  society  can  apply.  And  it  can  not  ab- 
solutely prohibit  destrucstion,  for  this  would  be  to  prohibit  the  use  of 
nature's  gift.  This  remedy  is  apt  to  be  insufficient,  from  the  difticulty 
of  enforcement,  but  it  tends  to  preserve,  and  sometimes  succeeds  in  pro- 
serving,  that  which  it  is  designed  to  save. 

Second.  But  where  some  men  liave  such  a  control  over  the  animal 
that  they  can  by  abstinence,  art,  and  industry  reap  its  full  natural  in- 
crease  and  make  it  available  for  human  wants,  and  at  the  same  time 
preserve  the  stock,  society  can,  as  it  does,  preserve  the  animal,  and  at 
the  same  time  secure  the  full  benefit  of  its  natural  increase  by  permit- 
ting them  to  kill  at  discretion,  and  prohibiting  killing  by  all  others. 

The  United  States  stand  upon  the  assertion  of  their  property  inter- 
est, and  if  that  is  recognized,  they  conceive  that  they  have  the  ability 
to  protect  it  on  every  sea.    It  is  not  usual  for  one  nation  to  voluntarily 


')r  ii! 


'! 


! 


i  '•"'■te 


11  ■! 


,  i^     ':■■! 


214 


ARGUMENT   OF   THE    UNITED    STATES. 


ask  t1)c  aid  of  another  in  the  defense  of  its  rights.  Each  is  ordinarily 
left  to  enforce  its  own  laws  with  its  own  power.  The  United  States  do 
not  ask  for  the  slightest  measure  of  aid  in  tae  performance  of  what  is 
properly  their  own  exclusive  work. 

But  it  may  happen,  and  does  happen  in  the  present  case,  that  what 
from  natural  situation  may  be  peculiarly  the  proper  work  of  one 
nation,  may  yet  be  the  work,  in  some  degree,  of  others.  The  destruction 
of  a  useful  race  of  animals  is  the  destruction  of  property  belonging  to 
the  whole  world,  and  is  a  crime  against  the  law  of  nations.  To  pre- 
vent and  punish  it  is  as  distinctly  the  duty  of  all  civilized  nations  as  it  is 
to  prevent  and  punish  the  crime  of  piracy.  The  pelagic  sealer  is  hostia 
humani  generis,  just  as  the  pirate  is,  though  witli  a  less  measure  of 
enormity  and  horror.  It  is,  therefore,  part  of  the  duty  of  nations  to 
forbid  their  citizens  from  engaging  in  the  practice  of  pelagic  sealing 
and,  as  the  parties  to  this  controversy  have  voluntarily  submitted  it  to 
this  Tribunal  to  declare  what  regulations  outside  of  their  respective 
jurisdictions  it  is  their  duty  to  concur  in  and  enforce  for  the  preserva- 
tion of  the  seals,  it  is  entirely  proper  tbat  the  tribunal  should  frame, 
even  while  recognizing  the  property  interest  asserted  by  the  United 
States,  a  simple  regulation,  to  be  concurrently  adopted  and  enforced 
by  each  nation,  prohibiting  all  sealing  at  sea,  except  by  the  native 
tribes  of  Indians  on  the  northwest  coast  of  America  for  the  purposes 
of  food  and  clothing  in  the  manner  iu  which  they  were  originally  ac- 

cust/omed  to  prosecute  it. 

Jajvies  0.  Uabteb. 


1 


DAMAGES  CLAIMED   BY    THE    UNITED   STATES. 


215 


FIFTH. 

CLAIMS  FOR  COMPENSATION. 

I. — Damages  Claimed  by  the  United  States. 

It  is  provided  in  article  viii  of  the  Treaty  that  either  party  may 
submit  to  the  Arbitrators  any  question  of  fact  involved  in  any  claim  it 
may  have  against  the  other;  and  ask  for  a  finding  thereon,  "  tie  question 
of  the  liability  of  either  government  upon  the  facts  found  to  be  the  subject 
of  further  negotiation^" 

As  the  undersigned  construes  this  paragraph,  it  limits  the  range  of 
inquiry  by  the  Tribunal  to  facts  which  bear  only  upon  the  amount  of 
the  claims  submitted,  as  the  question  of  liability  is  left  open  to  be 
settled -by  negotiation. 

And  in  the  fifth  article  of  the  ModnsVivendi  of  May  9, 1892,'  it  is  pro- 
vided that — 

If  the  result  of  the  Arbitration  be  to  affirm  the  right  of  British  sealers 
to  take  seals  in  the  Bering  Sea,  within  the  bounds  claimed  by  the 
United  States  under  its  purchase  from  Russia,  then  compen  sation  shall 
be  made  by  the  United  States  to  Great  Britain  (for  the  use  of  lier  sub- 
jects) for  abstaining  from  the  exercise  of  that  right  during  the  pendency 
of  tlie  Arbitration,  upon  the  basis  of  such  a  regulated  and  limited  catch 
or  catches  as  in  the  opinion  of  the  Arbitrators  might  have  been  taken 
without  an  undue  diininntion  of  the  seal  herds;  and,  on  the  other  hand, 
if  the  result  of  the  Arbitration  shall  be  to  deny  the  right  of  British 
sealers  to  tjike  seals  within  said  waters,  then  compensation  shall  be 
made  by  Great  Britain  to  th.e  United  States  (for  its  citizens  and  lessees) 
for  this  agreement  to  limit  the  island  catch  to  7,500  a  season,  upon  the 
basis  of  the  difference  between  this  number  and  such  larger  catch  as, 
in  the  opinion  of  the  Arbitrators,  may  have  been  taken  without  an 
undue  diminutiini  of  the  seal  herds. 

This  leaves  the  number  of  seals  which  might  have  been  taken  in  the 
Bering  Sea  by  the  British  sealers,  and  upon  the  Pribilof  Islands  by 
the  lessees  of  the  United  States,  without  danger  of  reducing  the  seal 
herd,  wholly  to  the  judgment  of  the  Tribunal  under  the  proofs  sub- 
mitted. 

>  Case  of  the  United  States,  Appendix,  Vol.  I,  p.  7. 


l'-i/4  " 


M 


i 


216 


ARGUMENT   OF   THE    UNITED    STATES. 


I   u 


In  tlio  printed  Case  snbmitted  on  behalf  of  the  United  States,  a 
claim  is  presented  under  the  clause  last  quoted,  for  compensation  to 
the  Unit«Kl  States  for  the  increased  amouut  of  rental  which  the  United 
States  would  have  received  upon  an  additional  number  of  skins  taken, 
and  for  a  bonus  of  S9.()2^  on  each  skin,  to  be  paid  by  the  lessees  of  the 
islands,  over  and  above  the  bonus  upon  the  7,600  skins,  which  are  per- 
mitted to  be  taken  under  the  Modus  VivendU  And  a  claim  is  also  sub- 
mitted b.v  the  United  States  in  behalf  of  its  lessees  for  the  profit  the 
lessees  would  have  made  upon  an  increased  number  of  seals  which 
might  have  been  take  above  the  7,500  but  for  the  Modus  VivendiJ^ 

The  Case  also  submits  a  claim  in  behalf  of  the  United  States  and 
lessees  for  compensation  for  the  limited  number  of  seals  taken  under 
the  Modus  Vivendi  of  1891. 

Frankness  requires  us,  as  we  think,  to  say  that  the  proofs,  which  ap- 
pear in  the  Counter  Case  of  the  United  States  as  to  the  condition  of  the 
seal  herd  on  the  Pribilof  Islands,  show  that  the  United  States  could 
not  have  allowed  its  lessees  to  have  much,  if  any,  exceeded  the  number 
of  skins  allowed  by  the  Modus  Vivendi  of  1892  without  an  undue  dimi.- 
nution  of  the  seal  herd,  and  upon  this  branch  of  the  case  we  simply 
call  the  attention  of  the  Tribunal  to  the  proofs,  and  submit  the  ques- 
tions to  its  decision. 

As  to  the  claims  submitted  in  behalf  of  the  United  States  and  its 
lessees  under  the  Modua  Vivendi  of  1891,  the  undersigned  also  feels  con- 
strained to  say  that,  as  no  provision  for  the  payment  of  compensation  to 
either  party  is  provided  for  in  that  agreement,  and  as,  under  the  laws  of 
the  United  States  and  lease  of  the  islands  by  the  United  States  to  the 
North  American  Commercial  Company,  the  United  States  had  the  full 
power,  through  its  Secretary  of  the  Treasury,  to  limit  the  catch  in  any 
year  to  such  number  as  in  the  discretion  of  the  Secretary  of  the  Treas- 
ury might  seem  proper,  we  must  admit  that  no  right  of  compensation 
accrued  under  that  agreement  to  either  the  United  States  or  its  lessees, 
for  the  reason  that  the  agreement  was  wholly  voluntary,  and  such  as 
the  two  governments  were  entirely  competent  to  make,  and  no  right  to 
compensation  would  accrue  to  either  government  or  its  citizens  unless 
specially  provided  for  in  the  Modus  Vivendi. 


»CuHO  of  the  Uuiteil  States,  pp.  286-289. 


*Ihid.,  pp.  289-291. 


!  ^i 


DAMAGES    CLAIMED    BY   GREAT   lUlITAIN. 


II.— Damages  Claimed  by  (Jueat  Britain. 


217 


TIio  claims  submitted  on  tlin  part  of  Groat  Britain  aro  for  damajyes 
sustained  by  certain  of  ita  subjects  by  reason  of  the  seizure  by  tbo 
United  States  of  certain  vessels  allep:ed  to  belong  to  such  subjects, 
and  warning  certain  British  vessels  engaged  in  sealing  not  to  enter 
Bering  Sea,  and  notifying  certain  other  British  vessels  engaged  in  the 
capture  of  seals  in  Bering  Sea  to  leave  said  sea,  whereby  it  is  insisted 
that  the  owners  of  such  vessels  sustained  losses  and  damages,  as  set 
forth  in  the  respective  claims,  these  claims  being  stated  in  detail  in 
the  ^^  Scheilule  of  particukirs^'  o{  said  claims  appended  to  the  British 
Case. 

The  right  and  authority  of  the  United  States  to  protect  the  seal 
herd,  wdiich  has  its  home  in  the  Pribilof  Islands,  and  in  the  exercise  of 
such  right  to  make  reprisal  of  seal-skins  wrongfully  taken,  and  to  seize, 
and,  if  necessary,  forfeit  the  vessels  and  other  property  employed  in 
such  unlawful  and  destructive  pursuit,  is  a  necessary  incident  to  the 
right  asserted  by  the  United  States  to  an  exclusive  property  interest 
in  said  seals  and  the  industry  established  at  the  sealeries. 

We,  however,  preface  what  we  have  to  submit  on  this  feature  of  the 
case  by  saying  that,  if  it  shall  be  held  by  this  Tribunal  that  these 
seizures  and  interferencen  with  British  vessels  were  wrong  and  un- 
justifiable under  the  laws  and  principles  apj^licable  thereto,  then  it 
would  not  be  becoming  in  our  nation  to  contest  those  claims,  so  far  as 
they  are  just  and  within  the  fair  amount  of  the  damages  actually  sus- 
tained by  British  subjects. 

And,  even  if  it  shall  be  decided  by  this  Tribunal  that  the  United 
States  were  not  justifiable,  under  the  circumstances  and  the  law,  in 
making  such  seizures  and  interfering  with  British  subjects  in  the 
pursuit  and  capture  of  fur-seals  in  the  Bering  Sea,  still  that  deciision 
would  furnish  no  ground  for  claims  based  on  wholly  illegal  and  unten- 
able grounds,  nor  for  extortionate  demands. 

The  actual  damages  sustained  by  these  British  subjects,  in  behalf  of 
whom  these  claims  are  presented  by  the  British  Government,  must,  un- 
doubtedly, be  finally  settled,  according  to  the  terms  of  the  Treaty,  by  ne- 
gotiations hereafter  to  be  had ;  but,  as  findings  of  fact  in  regard  to  these 
claims  are  asked  for,  our  purpose  in  this  part  of  the  argument  is  to 
call  attention  to  some  of  the  elements  which  go  to  make  up  these 
claims,  and  show,  as  we  think,  conclusively,  that  such  elements  can 


^1 


••Ifi 


1 1 1 1 


I    < 


'u 


-M 


218 


ARGUMENT   OF   THE   UNITED   STATES. 


not  ontor  into  daims  for  componsatiun  against  tlie  United  States  under 
the  Treaty. 
And  wo  contend- 
First.  Tliat  only  claims  properly  duo  to  mihjcota  of  Oreat  Britain 
should  be  submitted  on  tlio  part  of  that  nation  and  fludinfjs  of  facts 
fisked  in  relation  thereto;  and  in  the  application  of  tiiis  principle  we 
insist  that  it  is  shown  by  the  Counter  Case  of  the  United  States  and 
the  Appendix  thereto  that  the  schooner  W.  P.  Sayicard  and  the  steam 
schooners  Thornton,  Anna  Beck,  Orace,  and  Dolphin,  witli  all  their  sup- 
plies and  outfits,  were  in  fact  owned  by  one  Joseph  Boscowitz,  a  citizen 
of  the  United  States  at  the  time  these  vessels  were  respectively  seized 
by  the  United  States  oflBcers;*  that  for  sometime  prior  to  the  fall  of 
1885  said  schooner  and  steam  schooners  had  been  engaged  in  the  scal- 
ing business  in  the  joint  interest  of  said  Boscowitz  and  one  James 
Douglas  Warren;  that  Warren  had  no  capital,  and  although  nominally 
interested  in  said  vessels  and  their  catch  as  half  owner,  yet  in  fact 
the  money  representing  his  share  in  the  vessels  was  loaned  to  him  by 
Boscowitz,  and  secured  by  mortgages  to  Boscowitz  on  the  vessels; 
that  in  the  fall  of  1885  Warren  became  insolvent  and  made  an  assign- 
ment for  the  benefit  of  his  creditors,  and  in  order  to  transfer  the  title 
to  these  vessels  a  sale  of  them  was  made  under  the  Boscowitz  mort- 
gages, and  one  Thomas  H.  Cooper  bid  the  vessels  off  at  such  sale  for 
the  sum  oi*  $1,  Cooper  being  a  bi"other-in-law  of  Warren  and  a  British 
subject,  res<iding  in  San  Francisco,  Cal.;  that  on  becoming  such  pur- 
chaser Cooper  executed  mortgages  to  Boscowitz  on  the  vessels  for 
their  full  value,  which  mortgages  Bos(!Owitz  held  at  the  time  of  the 
seizures,  the  whole  transaction  being  had  solely  for  the  purpose  of 
securing  a  British  registration  for  said  vessels,  and  thereby  eiifibling 
Boscowitz  and  Warren  to  carry  on  the  sealing  business  under  the 
British  flag.* 

The  testimony  showing  Boscowitz  was  a  citizen  of  the  United  States 
is  found  in  the  aflBdavits  of  T.  T.  Williams  ^  and  a  report  of  Levi  W. 
Myers,  United  States  consul  at  Victoria,  B.  C,  dated  November  10, 
1892.*  While  the  proof  as  to  the  relations  between  Boscowitz  and 
Cooper  is  found  in  the  deposition  of  Thomas  H.  Cooper,  the  alleged 

>  Counter  Case  of  the  United  States,  p.  30;  App.,  pp.  255,351. 
*  Counter  Case  of  the  United  States,  App.,  pp.  321-;i25. 
•Ibid.,  p.  351. 
*Ibid.,  p.  36B. 


owner  of  the 
Wiincn  are 
pit'iidings  ai 
cross  ^'AiS(^  of 

The  pniof 
with  their  ^J 
were  seized 
deposition  of 
States  consu 
in  the  iuudch 

And  tliat  f 
in  fact  ownci 
Frank, a  citix 
although  reg 

It  will  be 
been  seized, 
but  that  tw( 
Pathfinder,  y, 
schedule  con1 
to  which  dai 
owned  by  cit 

It  is-fissuni 
niitted  show.' 
zens  of  the 
names  of  Bi 
justify  a  fine 
sustained  da 
Grace,  Dolph 
and  TAly. 

We  theref( 
of  theTribuii 

'  Ibid.,  pp.  32 
*Ibid.,  pp.  .30 
'  Counter  Cas 
*/6«rf.,  261. 
'Case of  Her 
United  States, 
"Counter  Caa 
» Case  of  Her 
•iWd.,  p.  1. 


DAMAOER   CLAIM  I  L)    BY    GUEAT    IJRITAIN. 


2i9 


owner  of  the  said  voasols;'  and  tlie  relations  between  Boscowit/,  and 
Warren  are  shown  in  the  testimony  of  Moseowifcz  and  Warren,  and  the 
plead injjs  and  decrees  in  the  .lase  of  Warren  vs.  Boscowitz  and  the 
cross  case  of  Boscowit/,  vs.  W^arren,  in  the  conrts  of  British  Columbia.* 

The  i)roof  also  shows  that  tlic  schooners  CnroUna  and  Pnlhfmih'r^ 
with  their  sui)|)lies  and  oiiMits,  were,  in  fact,  owned  at  the  time  they 
were  seized  by  one  A.  J.  P>echt<!!,  a  <',iti/,cn  of  the  United  States  (see 
deposition  of  W.  II.  Williams,^  and  a  repm-tof  Levi  W.  Myers,  United 
States  consul  at  Victoria,  B.  C),  althou;.;ii  said  vessels  were  registered 
in  the  names  of  British  8ub)e<'-ts.'' 

And  that  the  schooners  Alfred  Adams,  BlacTc  Diamond,a,nd  7yj7?/,  were 
in  fact  owned,  at  the  time  they  were  rcspec^tively  seized  by  one  A. 
Frank, a  citizen  of  the  United  States  (see  dei»ositionof  T.  T.  Williams),' 
althoufjh  registered  in  the  names  of  British  subjects.'' 

It  will  be  seen  by  looking  over  the  list  of  vessels  alleged  to  have 
been  seized,  or  interfered  with,  tliat  the  list  contains  twenty  vessels, 
but  that  two  of  the  vessels  named  in  that  list,  the  Triumph  and  the 
Pathfinder,  were  seized  or  interfered  with  twice;"  so  that, in  fact,  the 
schedule  contains  the  names  of  only  eighteen  sejiarate  vessels  in  regard 
to  which  claims  are  made,  and  of  these  eighteen,  ten  of  them  were 
owned  by  citizens  of  the  United  States. 

It  is-assumed  on  the  part  of  the  United  States  that  if  the  proof  snb- 
mitted  shows  that  these  ten  vessels  were  really  the  property  of  citi- 
zens of  the  United  States,  although  tliey  had  a  nominal  registry  in  the 
names  of  British  subjects,  snch  demonstration  will  be  sufficient  to 
justify  a  tinding  by  the  Tribnnal  that  no  citizen  of  Great  Britain  has 
sustained  damage  by  the  seizure  of  the  Saj/ward,  Anna  Beck,  Thornton, 
Grace,  Dolphin,  Carolina,  Pathfinder,  Alfred  Adams,  Black  Diamond, 
and  Lily. 

We  therefore  confidently  ask  and  expect  the  decision  and  finding 
of  the  Tribunal  that  these  claims  do  not  belong  to  iintish  subjects,  and 


iN 


i  ji*  I      I 


t  ■ 


>  Ihid.,  pp.  320-325. 
«Z6W.,  pp.  301-320. 

'Counter  Case  of  United  States,  Appendix,  p.  351. 
*  I  bid.,  261. 

•Case  of  Her  Majesty's  Governmont,  Schedule  of  Claims, pp.  1, 40 ;  Counter  Case  of 
United  States,  Appendix,  p.  25G. 
"  Counter  Case  of  United  States,  Appendix,  p.  352, 
TCase  of  Her  Mi^esty's  Goveinmeut,  Soliedole  of  Claims,  pp.  32,  48,  60. 
•lUd.,  p.  1. 


,\<\ 


I 


220  ARGUMENT  OF   THE   UNITED   STATES. 

for  that  reason  tlic  Tribunal  can  not  be  called  upon  to  find  any  facts 
respecting  them. 

To  justify  a  finding  upon  a  claim,  it  must  be  made  to  appear  iiflSrma- 
tivcly,  by  a  clear  preponderance  of  proof,  that  the  claim  is  owned  by 
one  of  the  Governments,  parties  io  this  Arbitration,  or  to  a  citizen  or 
subject  of  such  Government.* 

We  insist  that  we  may,  with  propriety,  go  farther  and  say  that,  if 
there  is  even  doubt  that  a  claimant  is  a  citizen  of  the  nation  tliat  pre- 
sents a  claim  in  his  behalf,  that  doubt  should  of  itself  be  enough  to 
preclude  any  finding  of  facts  involved  in  such  claim. 

The  powers  and  jurisdiction  of  this  Tribunal  are  delegated  to  it  by 
the  Treaty  wliich  is  in  itself  but  a  contract  or  agreement  and  its  terms 
can  not  be  enlarged  or  amijlifled  by  construction. 

In  taking  this  ground  we  do  not  intend  to  cast  any  aspersion  upon 
the  good  faith  of  the  British  Government,  or  its  Agent,  for  having  pre- 
sented these  claims,  as  we  admit  that  on  the  face  of  the  claims  as  pre- 
sented they  appear  to  be  in  favor  of  British  subjects.  But  we  do  insist 
that  it  is  right  for  this  Tril)unal  to  go  behind  the  face  of  the  papers 
and  ascertain,  from  proofs  furnished,  whcjther  or  not  the  persons  to  be 
benefited  by  the  allowance  or  payment  of  these  claims  are  in  fact 
British  subjects,  and  that  no  fticts  should  be  found  involved  in  any 
claim  where  there  is  even  good  ground  for  doubt  that  such  claim  be- 
longs to  a  British  subject. 

Second.  All  these  claims  but  two  (the  Triumph,  No.  11,*  and  the 
Fathfindcr,  No.  20,^  of  schedule)  contain  an  item  for  '■'■loss  of  probable 
catch,^^  "  loss  of  estimated  catch,''^ ''  balance  of  probable  catch,"  '■'■probable 
catch,^  etc.* 

All  of  which  will  more  fully  appear  by  the  following  t/abulated 
statement: 

No.  1.  OaroNna,  estimated  catch ^^'GjGO? 

No.  2.  Thornton,  estiniat^d  catcb 16,  BG7 

No.  3.  Onward,  estimated  catch 16,  t)G7 

No.  4.  Faforile,  estiniu tod  loss  of  en ( eh 7,  000 

No.  5.  Sa-jward,  pr<)l)ul)le  catch  of  1SS7 19, 250 

No.  O.  O'cflCf,  prol)rtl)lo  catch 23,100 

No.  7.  Anna  Heck,  iirobablo  catch 17.  323 

No.  8.  7)o?|)ft«n,  iiroUable  catch 24,750 

'Article  viii  of  Treaty  of  Arbitration. 

•Cnsenf  ITcr  M.ijcsty's  Governmont,  Sohednlo  of  Claims,  p,  SO. 

"•/ftid.,  p.  57. 

♦/Mrf.,  pp.  1-fiB. 


DAMAGES   CLAIMED   BY   GREAT   BRITAIN.  221 

S(>     9.  -'1  r/r«l  ^4rfom8,  probable  catnli $19,230 

No.  10    Ada,  probable  catcli 15, 8m 

No.  12.  Jii-.nala,  estimated  catch 9, 424 

No.  13.  Pathfinder,  estimated  catch l.'>,  ;W 

No.  14.  IHumph,  estiiiiated  catch 19, 4; 

No.  15.  Black  Diamond,  cstiniatoil  catch 16, 19 

No.  16.  Lili/,  balance  of  catch 14, 13  if 

No.  17.  Ariel,  balance  of  estimfited  catcli 9,  248 

No.  18.  Kate,  balance  of  catch 10.1160 

No.  19.  Minnie,  balance  of  catch 16, 112 

357,  353 

All  these  items  are  subject  to  the  objection  that  they  are  iirospective 
profits,  uncertain  and  contingent  in  their  nature,  and  can  not  be  made 
the  basis  of  a  claim  for  compensation  to  the  owners  of  these  vessels. 

In  Sedgwick,  on  the  "  Measure  of  Damages,"  page  69,  sixth  American 
edition,  it  is  .said : 

The  early  cases  in  both  the  English  and  American  courts,  generally 
concurred  in  denying  profits  as  any  part  of  the  damage  to  be  comi)eu- 
sated,  whether  in  cases  of  contract  or  tort. 

In  a  case  for  illegal  capture,  Avhere  one  of  the  items  of  the  claim  for 
damages  was  the  profits  on  the  voyage  broken  up  by  the  capture,  the 
court  said : 

Independent,  however,  of  all  authority,  I  am  satisfied  upon  principle 
that  an  allowance  of  damages  upon  the  basis  of  a  calculation  of  profits 
IS  inadmissible.  Tiie  rule  would  be  in  the  liighest  degree  unfavorable 
to  the  interests  of  tiie  connuunity.  The  subject  would  be  involved  in 
utter  uncertainty.  The  calculation  would  proceed  upon  contingeuijies 
ond  would  reijuire  a  knowledge  of  foreign  markets  to  an  ex;u;tness  in 
point  of  time  and  value,  which  would  sometimes  present  embarrassing 
obstacles.  Much  would  depend  upon  the  length  of  the  voyage  and  the 
season  of  the  arrival;  much  upon  the  vigilance  and  activity  of  the  mas- 
ter, and  Jinich  upon  the  momentary  demand.  After  all,  it  \:  tmld  be  a 
calculation  upon  conjecture  and  not  upon  facts.^ 

In  the  case  of  the  Aminhh  Waney^  Mr.  Justice  StA)ry,  speaking  for  the 
United  States  Supreme  Court,  said : 

Another  item  ih  $3,500,  for  the  loss  of  the  supposed  pi'oflts  of  the 
voyage  on  which  the  Aniialde  Nnncu  »vis  orisrinally  boiiud.  In  the 
opinion  of  the  court,  this  item  also  wa.s  properly  rejected.  The  prob- 
iible  or  j)()SHible  benefits  of -.i  voyage,  an  yet  in  fieri,  can  never  all'ord  a 
safe  rule  by  which  t.o  estimate  damages  iti  cases  of  a  marine  trespass. 
Tlnere  is  so  much  uncertainty  in  the  rule  itself,  «o  nniiiy  (iontingencies 
wliich  may  vary  or  extinguiah  its  ap}>]icatioM,  and  so  many  dillicul- 
ties  in  sustaining  its  legal  correctnesH,  that  the  court  "o...  not  believe 
it  proper  to  entertain  it.    In  several  cases  in  this  court,  the  claim  for 


I  tt'  ■:! 


%\ 


1  Xho  Hchooucr  Lively,  1  Uallisuu,  314. 


I  * ' 


!  ;  - 


ii^i 


222 


ARGUMENT   OP  THE   UNITED   STATES. 


profits  has  been  expressly  overruled ;  and  in  Del  Col  v.  Arnold  (3 
Dall.,  333)  and  The  Anna  Maria  (2  Wheat.,  327),  it  was,  after  strict  con- 
sideration, held  that  the  prime  cost,  or  value  of  tlie  property  lost,  at 
the  time  of  the  loss,  and  in  case  of  injury,  the  diininutio'i  in  value  by 
reason  of  the  injury,  \yi  111  interest  upon  such  valuation,  afforded  the 
true  measure  lor  assessing  damages.  This  rule  may  not  secure  a  com- 
plete indemnity  for  all  possible  injuries;  but  it  has  certainty  and  gen- 
eral {ii>plicability,  to  recommeud  it,  and,  in  almost  all  cases,  will  give  a 
fair  and  just  recompense.' 

And  in  Wood's  Mayue  on  Damages,'^  the  author,  ?•  'teuking  of  damages 
in  cases  of  tort,  says :  '  - 

In  general,  however,  injuries  to  property,  where  u  ;accompanied  by 
malice,  and  especially  where  they  take  place  under  a  fancied  right,  are 
only  visited  witli  damages  proportionate  to  the  actual  pecuniary  loss 
sustained. 

While  it  is  conceded  that  there  has  been  some  relaxation  of  the 
rigid  rule  of  the  early  cases  in  England  and  the  United  States,  in  regard 
to  the  allowance  of  profits  as  an  element  for  the  award  of  damages 
or  compensation,  it  is  undoubtedly  still  the  rule  in  both  countries  that 
profits  can  only  be  allowed  as  damages  where  they  are  in  the  contem- 
plation of  parties,  iu  cases  arising  on  contract,  and  where  they  are  the 
necessary  and  proximate  result  of  the  injury  in  cases  of  tort,  and  in 
those  latter  cases  only  where  they  can  be  proven  or  establ"  -..ci  \7ith 
substantial  certainty.^ 

These  vessels  were  all  engaged  in  a  hazardous  voyage  upon  th'»  boist- 
erous waters  of  the  North  Pacific  Ocean  and  Bering  ^Ui,  suujft  t-^  11 
the  perils  of  the  sea,  and  the  mind  can  hardly  conceive  any  event  more 
uncertain  and  contingent  then  the  number  of  seals  they  would  have 
captured  if  they  pursued  their  voyages  unmolested.  Shipwreck  and 
every  other  element  of  uncertainty,  including  the  proverbial  uncertainty 
which  is  always  an  elerne:.u  In  fishing  and  hunting  expeditions,  would 
seem  to  attend  all  such  ventures,  and  the  cogent  reason  /  t  of  Mr.  Jus- 
tice Story  in  the  cases  just  cited  seems  unqualifiedly  ii)\  -  •  •i*:le  to  the 
items  of  "  probable  catch,"  etc.,  presented  in  this  scliedun  ,  r  clainjs. 

The  Tribnnal  will  bear  in  mind  that  the  United  States  do  not 
ocxjupy  the  position  of  a  tx)rt  f'W.soi,  subject  to  exemplary  or  vindic- 
tive damages.  "The  King  ^Sjverei^ii)  ci.t  do  no  wrong."  The  acts, 
in  respect  to  which  compensation  is  asked  in  behalf  of  these  British 


>3  Wheaton'8  U.  8.  Ropt8.,54B;  8eealso8inith»».  Courtry,  I  How.  U.  8.  Repts.,  28-34. 

•First  Aiuoricaii  (Mlitioii,  from  third  l';njj;lish  tnlitioii,  p.  5(3. 

*Hadley  v».  liuxuiidule,  9  Exch.  341;  MuHtcrtou  va.  Miiyur  of  Brook]jrn  7  Hill,  ti2. 


DAMAGES   CLAIMED    BY    GREAT   BRITAIN.  223 

subjects,  were  performed  by  the  United  States  iii  the  exercise  of  its 
sovereignty,  and  the  execution  of  its  statutory  laws,  and  uo  malice  or 
other  unjust  motive  can  be  imputed  to  those  acts. 

Among  the  claims  presented  by  the  United  States  in  behalf  of  its 
citizens  to  the  Tribunal  of  Arbitration  upon  the  Alabama  claims, 
which  met  at  Geneva  in  1872,  under  the  treaty  between  Great  Britain 
and  the  United  States,  were  a  large  number  of  claims  like  tliose  now 
under  consideration,  for  the  prosi)ective  earnings  of  ships  destroyed 
by  the  rebel  cruisers  in  the  late  civil  war  of  the  United  States,  and 
that  tribunal,  by  the  unanimous  vote  of  its  members,  said  in  regard  to 
such  claims : 

And  wLereas  prospective  earnings  can  not  properly  be  made  the 
8ubje(jt  of  compensiou  inasmuch  as  they  depend  in  their  nature  upon 
future  and  uncertain  contingencies,  the  tribunal  is  unanim(msly  of 
opinion  that  there  is  no  ground  for  awarding  to  the  United  States  any 
sum  by  way  of  indemnity  under  this  head,' 

It  is  therefore  respectfully  submitted  that  the  rule  of  decision 
adopted  in  the  case  of  the  Alabama  chiims  is  well  established  in  the 
jurisprudence  of  the  two  nations  now  at  the  bar  of  this  Hiffh  Tribunal; 
and  in  the  light  of  the  authorities  cited  the  undersigned  respectfully 
insists  that  the  items  in  these  claims  for  "probable  catch,"  "estimated 
catch,"  etc.,  which  amount  in  the  aggregate  to  over  two-thirds  of  the 
grand  total  of  the  claims  presented,  must  be  considered  as  wholly 
speculative  and  ao  uncertain  that  Great  Britain  is  not  entitled  to  any 
flndir.^;  as  to  any  fact  involved  therein,  except  the  fact  of  their  uncer- 
tain ;.y,  wliioh  appears  on  the  face  of  the  claims  themselves. 

In  the  claims  growing  out  of  the  seizures  of  the  Carolina,  Thornton, 
Onicard,  Say  ward,  Grace,  Anna  Bcclc,  DolpJiiii,  and  Ada  there  are  also 
items  for  the  future  earnings  of  those  vessels,'^  namely : 

No,  1,  Carolina,  seized  1886: 

Claims  for  earnings  in  1887 ;    .;.  $5,000 

Claims  for  eaniings  in  1888 5, 000 

No.  2,  Thornton,  seized  in  1886 : 

Claims  for  estimated  losa  to  owner  by  detention  in  1887 5, 000 

Claims  for  estimated  loss  to  owner  by  detention  in  1888 5, 000 

No.  3,  Onward,  seized  in  1886: 

Claims  reasonable  profit  for  season  of  1887 5, 000 

Claims  reasonable  profit  for  season  of  1888 f>,  000 


'Geneva  Arbitration,  Coni^rossional  publication,  vol.  iv,  p.  53;  see  also  Wheatou's 
International  Law  (Boyd's  3d  English  edition),  see,  539,  t,  p.  592. 

'Case  of  Her  Majesty's  Govcmmcut,  ScLi;dulo  of  Claims,  pp.  5,9,  11,  19,  23,  27, 
31,36. 


:m 


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224         ARGUMENT  OP  THE  UNITED  STATES. 

No.  5.  Saj/ward,  seized  in  1887: 

Claims  for  earnings  in  cbastiuf?  ovade  in  fall  of  1887 $t,  200 

Earnings  for  season  of  1888 6,000 

No.  6.  (irace,  seized  in  1887 : 

Claims  for  probable  earnings  in  fall  of  1887 2,  <X)0 

Claims  for  probable  earnings  in  season  of  1888 7,000 

No.  7,  Anna  lienk,  seized  in  1887: 

Claims  for  probable  earnings  in  coasting  trade  in  fall  of  1887 2, 000 

For  probable  net  earnings  in  season  of  1888 6, 000 

'^,  8,  Dolphin,  seized  in  1887: 

Claims  for  probable  earnings  in  fall  of  1887 2,000 

Claims  for  pi-obable  net  earnings  in  season  of  1888 7, 000 

^o.  10,  Ada,  seized  in  1887: 

Probable  earnings  in  fall  of  1887 2,000 

Probable  earnings  for  season  of  1888 6,  000 

Total 71,200 

These  items  it  will  be  no^i'^od  are  in  addition  to  the  items  of  "  prob- 
able catch,"  or  "  estimated  catch  "  for  the  seasons  in  whii  h  tii'^  respect- 
ive vessels  were  seized. 

Notliing-  can  more  fully  illustrate  the  wholly  speculative  character  of 
this  class  of  claims  than  a  consideration  of  these  items  in  the  light  of 
the  indisputable  facts. 

The  Carolina,  Tliornton,  Onward,  Grace,  Anna  Beck,  Dolphin,  and.  Ada 
were  seized  and  decrees  of  forfeiture  rendered  against  them  by  the 
United  States  district  court  for  the  district  of  Alaska,  and  the  Caro- 
lina, Onward,  and  Thornton  were  left  to  go  to  pieces  in  the  harbor  of 
Onalaska;'  and  the  Dolphin,  Grace,  Anna  Beck,  and  Ada  were  sold 
under  decrees  of  that  court,  while  the  Saytcard  was  released  on  a  bond 
given  by  her  owners  a  year  or  more  after  the  decree  of  forfeiture  was 
entered. 

These  seizures  were  in  effect  a  conversion  of  these  vessels  at  the  time 
of  the  seizure,  and,  with  the  exception  of  the  Say  ward,  their  capacity 
to  earn  anything  for  their  owners  ended  with  the  seizure.  The  measure 
of  compensation  to  the  owners  was  therefore  the  value  of  the  property 
taken  at  the  time  it  was  taken,  perhaps  Avith  interest  from  the  time 
of  taking.  The  owners  were  dispossessed  by  the  seizure,  and  their 
interest  in  the  property  merged  in  their  claim  for  compensation,  if  they 
have  any  such  claim;  and  no  claim  can  therefore  accrue  to  them  for 
the  possible  future  earnings  of  the  vessels.* 

'Declarations  of  James  Douglas  Warner,  Case  of  Her  Majesty's  Government, 
Schedule  of  Claims,  pp.  3,  6,  12. 

^Sedgwick  on  Measure  of  Damnges,  6tli  ed.  583;  Conrad  v.  Pacific  Insur.ancc 
Company,  6  Peters  U.  S.,  262-282;  TUo  Ann  Caroline,  2  Wall.,  22  U.  S.  638;  Smith 
et.  al.  r.  Coiidry,  1  How.  U.  8.,  28-34;  Wood's  May  no  on  Damages,  3  Eng.  and  Ist 
Am.  oil.,  p.  ISO. 


DAMAGES   CIjAIMED   BY    GREAT   BRITAIN. 


225 


In  Sutherland  on  Damages,  vol.  i,  p.  173  (now  a  standard  anthority 
in  the  courts  of  the  United  States),  the  rule  is  stated  as  follows: 

The  valne  of  the  property  constitutes  the  measure  or  an  element  of 
damages  in  a  great  variety  of  cases  both  of  tort  and  contract;  and 
where  there  are  no  such  aggravations  as  call  for  or  justify  exemplary 
damages,  in  actions  in  which  such  damages  are  recoverable,  the  value 
is  aiscertained  and  adopted  as  the  measure  of  compensation  for  being 
deprived  of  the  property,  the  same  in  actions  of  tort  as  in  actions  upon 
contract.  In  both  cases  the  value  is  the  legal  and  fixed  measure  of 
damages  and  not  discretionary  with  the  jury.  #  *  »  And,  more- 
over, the  value  is  fixed  in  each  instance  on  similar  considerations  at  the 
time  when  by  the  defendant's  fault  the  loss  culminates.  (Grand  Tower 
Oo.  vs.  Phillips,  23  Wall.,  471.    Owen  vs.  Routh,  14  (J.  B.,  327.) 

To  recapitulate:  None  of  the  items  of  these  several  claims  for  "esti- 
mated catch,"  or  "  probable  catch,"  for  the  season  or  voyage  in  which 
the  seizures  took  place  can  be  considered,  because  they  are  in  the 
nature  of  prospective  profits,  and  fall  within  the  rule  adopted  by  the 
tribunal  in  the  Alabama  Claims,  and  the  other  authorities  cited;  aud 
all  the  items  for  the  probable  earnings  of  these  arrested  vessels,  subse- 
quent to  the  seizure,  fall  within  the  siinie  objection  of  uncertainty  and 
contingeucy,  and  the  further  objection  that  the  conversion  of  the  prop- 
erty was  completed  by  the  seizure,  and  the  owners'  only  remedy  was 
for  the  value  of  the  property  so  seized  at  the  time  of  the  seizure. 

But,  if  the  Tribunal  for  any  reasons  shall  deem  itself  required  to 
pass  upon  these  items  or  find  any  facts  involved  therein,  except  that 
of  their  invalidity,  we  tlien  briefly  submit  that  the  "estimated"  and 
"probable  catches"  are  altogether  overstated  and  extravagant. 

In  the  declaration  of  James  Douglas  Warren,  in  support  of  the 
claims  in  behalf  of  the  alleged  owner  of  the  Say  ward,  Anna  Beck,  Grace, 
and  Dolphin,  he  states  that  the  estimate  is  made  on  the  basis  of  three 
hundred  and  fifty  skins  taken  by  each  boat  and  canoe  for  the  full 
season.' 

In  the  report  of  the  British  Commissioners,  forming  part  of  the  Brit- 
ish case,*  it  is  shown  that  the  average  catch  per  canoe  or  boat  for  the 
British  sealers  for  the  same  year  was  1G4  seals,  or  less  than  one-half  of 
Capt.  Warren's  average;  and  in  the  same  paragrai)h,  the  British  Com- 
missioners say : 

The  actual  success  of  individual  sealing  vessels  of  course  depends  so 
largely  upon  the  good  fortune  or  good  judgment  Avhich  may  enable 
them  to  fall  iu  with  and  follow  considerable  bodies  of  seals,  as  well  as 


>  Case  of  Her  Majesty's  Government,  Schedule  of  Claims,  pp.  18,  22,  25,  29. 
•Report  of  Br.  Com.,  seo.  407,  p.  74. 
14749 15 


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226 


ARGUMENT  OP  THE  UNITED  STATES. 


,'■ 


on  the  weather  experienced,  that  the  figures  representing  the  catch 
compared  to  the  boats  or  whole  number  of  men  employed  constitute  a 
more  trustworthy  criterion  than  any  general  statements.  ^ 

We  may,  therefore,  safely  say  that  if  conjecture,  based  upon  any  rule 
of  averages,  is  to  be  resorted  to  for  the  purpose  of  attempting  to  ap- 
proximate the  probable  catches  of  these  vessels,  the  British  Commis- 
sioners have  given  far  more  reliable  data  than  that  furnished  by  these 
claimants. 

The  fallacy  of  these  "estimates"  is  also  shown  in  another  way.  We 
open  the  schedule  of  the  British  claims  at  random  and  take  the  claim 
growing  out  of  the  seizure  of  the  Minnie,  No.  19.*  It  seems,  from  the 
declaration  accomi)anying  the  claim,  that  she  left  Victoria  the  fore  part 
of  May  on  a  scaling  voyage  in  the  Jforth  Pacific  Ocean  and  Bering 
Sea.  She  entered  Bering  Sea  on  the  27th  of  June,  at  which  time  she 
had  caught  150  seals.  She  hunted  seals  in  the  Bering  Sea  until  July 
15,  during  which  time  she  had  taken  270  skins,  which  was  at  the  rate 
of  15  skins  per  day.  She  was  seized  on  the  15th  of  July;  leaving  her 
16  days  of  July  and  16  in  August,  making  32  days  in  all  of  her  sealing 
season,  during  which  time  she  would  have  caught,  at  the  rate  of  15  per 
day,  480  seals;  to  which  adding  the  420  she  had  taken  previously, 
makes  a  total  catch  for  the  sealing  season  of  900;  while  her  "estima- 
ted catch"  is  2,500  seals  for  the  season. 

Take  also  the  claim  of  the  Ada,  No.  10.'  She  entered  Bering  Sea, 
as  is  shown  by  the  declaration  accompanying  the  claim,  about  the  16th 
day  of  July,  1887,  and  continued  sealing  in  the  said  sea  until  the  25th 
day  of  August,  which  was  beyond  the  time  when  skins  taken  are  con- 
sidered merchantable,^  and  within  two  weeks  of  the  time  when,  as  the 
British  Commissioners  admit,*  the  sealing  season  closes,  and  yet  her 
entire  catch  up  to  that  time  was  only  1876  skins,  while  the  "estimated" 
or  "probable  catch"  is  put  at  2876. 

The  value  and  tonnage  of  these  vessels  is  also  largely  overstated,  as 
is  shown  by  the  tables  submitted  with  the  Counter  Case  of  the  United 
States,*  and  the  value  jof  several  of  the  vessels  seized  was  ascertained 
by  sworn  appraisers  of  the  District  Court  of  Alaska  and  shown  to  be 
much  lower  than  the  value  stated  in  this  schedule  of  claims. ''    That  these 


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again 

invari 

willp 


•Report  of  Br.  Com.,  p.  73,  sec.  407. 

"Case  of  Her  Majesty's  Government,  Schodnle  of  Clauns,  p.P«J. 
s  Ibid,  p.  U. 

*Connter  Case  of  the  United  States,  Appendix,  pp.  357,  376,  384. 
•Report  of  Br.  Com.,  sec.  212. 
.  "  Counter  On' <■  of  the  United  States,  Appendix,  pp.  339,  et  ieq, 
» Ibid.,  pp.  32y-  38. 


DAMAGES    CLAIMED    BY    GREAT    BRITAIN. 


227 


appraisals  were  fair  and  showed  the  substantial  and  fair  value  of  the 
property  is  evidenced  by  the  fact  that,  althi>ugh  the  owners  of  the  ves- 
sels had  the  privilege  of  releasing  them  upon  bonds,  none  of  them,  ex- 
cept the  Sayicard,  were  so  released,  although  application  was  made 
to  have  their  valuation  reduced  in  order  that  the  owners  might  give 
bonds.* 

We  might  follow  the  analysis  of  different  items  of  these  claiTus  and 
successfully  show  that  they  are  all  very  much  exaggerated,  but  do  not 
deem  it  necessary  to  do  so,  because  we  feel  sure  the  members  of  this 
Tribunal  will  take  notice  of  the  fact  that  individuals  in  making  claims 
against  a  government,  whether  it  be  their  own  or  a  foreign  government, 
invariably  expand  these  claims  to  the  largest  amount  their  consciences 

will  possibly  tolerate. 

H.  W.  Blodgett. 


lYs       1**1 


1  H 


"k 


>  Senate  Doc.  lOG,  SOtli  Cong.,  Second  Scss.,  pp.  28,  74. 


i1. 


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in 


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228 


ASQUMEKX  OF  THE   UNITED  STATEa 


SIXTH. 


SUMMARY  OP  THE  BVIDENCB. 

To  the  end  that  the  High  Contracting  Parties  should  become  ftilly  in- 
formed of  all  the  facts  bearing  upon  the  differences  between  them,  and 
as  a  right  method  of  securing  evidence  as  to  those  points  touching  which 
a  dispute  might  exist,  it  was  stipulated  by  Article  IX  of  the  Treaty  that 
two  Commissioners  on  the  part  of  each  Government  should  be  appointed 
to  make  a  joint  investigation  and  to  report,  in  order  that  such  reports  and 
recommendations  might  in  due  form  be  submitted  to  the  Arbitrators, 
should  the  contingency  therefor  arise. 

The  Commissioners  were  duly  appointed  in  compliance  with  this  pro- 
vision of  the  Treaty,  and  so  far  as  they  were  able  to  agree,  they  made 
a  joint  report,  which  is  to  be  found  at  page  307  of  the  Case  of  the 
United  States.  It  will  be  seen  from  this  joint  rejiort  that  the  Commis- 
sioners were  in  thorough  agreement  that,  for  industrial  as  well  as  for 
other  obvious  reasons,  it  was  incumbent  ujwn  all  nationSj  and  particu- 
larly upon  those  having  direct  commerdal  inter enta  in  furseaU,  to  pro- 
vide/or their  primer  protection  and  preservation.  They  were  also  in 
accord  as  to  the  fact  that  since  the  Alaska  purchase  a  marked  diminu- 
tion of  the  number  of  seals  on  and  habitxtaUy  resorting  to  the  Pribilof 
Islands  had  taken  place;  that  this  diminution  was  cumulative  in  effect 
and  was  the  result  of  excessive  killing  by  man.  Beyond  this  the  Com- 
missioners were  unable,  by  reason  of  considerable  difference  of  opinion 
on  certain  fundamontal  propositions,  to  join  in  a  report,  and  they  there- 
fore agreed  that  their  respective  conclusions  should  be  stated  in  sev- 
eral reports  which,  under  the  terms  of  the  Treaty,  might  be  submitted 
to  their  respective  Governments. 

The  United  States  have  submitted,  with  the  report  of  their  Commis- 
sioners, a  voluminous  mass  of  testimony  which  appears  to  have  been 
elicited  from  all  classes  of  persr  >  who,  by  their  education,  residence, 
training,  etc.,  might  be  enabled  to  give  information  of  practical  value 
and  of  a  reliable  character  to  the  contracting  governments.    lit  has 


SUMMARY   OF   THE   EVIDENCE. 


229 


been  the  Intention,  in  procuring  evidence,  to  follow,  as  closely  as  the 
circustances  permitted,  the  principles  and  methods  obtaining  in  both 
countries  in  litigation  between  private  parties,  and  although  it  was  not 
possible  to  produce  each  witness  before  a  magistrate  and  tender  him 
for  cross-examination,  in  every  instance  the  name,  the  residence,  and 
the  profession  or  business  of  the  witness  has  been  given,  and  in  every 
instance  the  witness  has  sworn  to  the  truth  of  his  deposition.  This 
method  of  performing  their  functions  may  be  favorably  contrasted  with 
the  course  which  the  Commissioners  of  Great  Britain  thought  it  incum- 
bent upon  or  permissible  for  them  to  pursue.  In  very  few  instances 
have  they  seen  fit  to  give  the  name  of  their  informant  or  to  place  it  in 
the  power  of  the  United  States  to  test  the  reliability  of  the  source  Irom 
which  they  had  derived  their  knowledge,  real  or  supposed.  But  they 
have  presented  a  great  mass  of  statements  of  their  own,  evidently  based 
in  a  great  measure  upon  conjectui'e,  much  of  it  directly  traceable  to 
manifest  partiality,  and  marked,  to  a  singular  degree,  by  the  exhibition 
of  prejudice  against  the  one  party  anil  bias  in  favor  of  the  other.  The 
extent  to  which  this  has  been  carried  Kiust,  in  the  eyes  of  all  impartial 
persons,  deprive  it  of  all  value  as  evidence. 

How  far  counsel  for  the  United  States  are  justified  in  making  thia 
sweeping  criticism  upon  the  work  of  the  British  Commissioners  will 
appear  hereafter,  when  detailed  attention  is  given  to  the  result  of  their 
labors.  The  adoption  of  such  a  course  is  the  more  to  be  regretted  as 
it  was  evidently  the  purpose  and  object  of  the  British  Government  that 
an  entirely  dififerent  investigation  should  be  carried  out  by  its  agents; 
nor  had  that  Government  hesitated  to  express  its  earnest  desire  that 
the  actual  facts  should  be  given  and  that  the  investigation  should  be 
carried  on  with  a  strict  impartiality.  It  is  certain  that  the  Commissioners 
were  warned  in  clear  language  that  "great  care  should  be  taken  to  sift 
the  evidence  that  was  brought  before  them."  (See  instructions  to  the 
British  Commissioners,  page  1  of  their  Eeport). 

In  attempting  to  lay  before  this  distinguished  Tribunal  the  facts  that 
may  enlighten  its  judgment,  the  counsel  for  the  United  States  propose 
to  show  what  facts  are  established,  substantially  without  controversy, 
and  wherein  their  contention  in  case  of  difference  is  sustained  by  un- 
mistakable preponderance  of  proof.  For  the  purpose  of  facilitating 
the  labors  of  this  body,  they  propose  to  treat  every  topic  of  special  im- 
portance separately  and  to  produce  the  evidence  which  has  a  bearing 
upon  the  discussion  of  its  merits. 


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230 


ARGUMENT   OF   THE    UNITED   STATES. 


I 


I.— The  General  "N'ature  and  Ohaeaoteeistios  of  the  Fub-Seal. 

It  is  unfortunate  that  even  upon  so  familiar  a  subject  and  one  so  often 
treated  as  the  seal,  its  nature,  and  habits,  there  should  be  a  wide  di- 
vergence between  the  Araericau  and  British  Commissioners.  In  fact, 
it  would  seem  that  the  animal  observed  by  the  Commissioners  from 
Great  Britain  was  an  entirely  different  animal  from  that  considered 
and  studied  by  the  Commissioners  appointed  by  the  United  States. 
This  is  the  more  remarkable  because  for  more  than  a  century  a  multi- 
tide  of  observers,  scientists,  government  agents,  and  overseers  have 
been  giving  their  attention  to  the  nature,  habits,  and  life  of  the  fur 
bearing  seal,  the  best  method  of  protecting  the  animal  from  destruction, 
and  the  wisest  course  to  secure  an  annual  increase  for  the  purposes  of 
commerce;  the  reason  for  which  the  supply  of  these  valuable  creatures 
has  diminished;  the  number  of  animals  yearly  killed,  etc.  They  cer 
tainly  by  this  time  ought  to  have  become  fairly  ascertained  and  known 
and  to  be  placed  beyond  the  reach  of  discussion  or  dispute,  and  so,  in 
fact,  they  seem  to  be.  There  has  been  a  general  concurrence  among 
the  observers  referred  to,  as  complete  as  may  be  found  among  the 
same  class  of  persons  in  relation  to  the  nature  and  habits  of  ordinary 
domestic  animals. 

But  it  has  become  apparent  that  the  British  Commissioners  have  in 
their  separate  report  thought  fit  to  make  an  elaborate  defense  of  the 
practice  of  pelagic  sealing  and  to  have  imparted  to  their  investigations 
and  the  formulation  of  their  conclusions  so  strong  a  desire  to  protect 
the  supposed  interests  of  their  people  as  to  lead  them  to  most  extraor- 
dinary conclusions;  indeed,  this  unfortunate  result  seemed  almost 
inevitable,  the  premises  upon  which  they  started  being  conceded.  To 
defend  pelagic  sealing,  the  main  feature  of  which  consists  of  slaughter 
ing  gravid  females  or  nursing  mothers,  it  was  almost  inevitable  that 
some  fundamental  mistakes  should  be  made  as  to  the  nature  and  hab- 
its of  the  animals  and  that  statements  should  be  adopted  and  theories 
advanced  which,  upon  their  face,  are  utterly  unworthy  of  countenance 
or  respect.  The  animal  discovered  by  the  British  Commissioners  might 
be  defined  to  be  a  mammal  essentially  pelagic  in  its  natural  condition 
and  which  might  be  entirely  so  if  it  chose  to  be;  an  animal,  too,  which 
is  gradually  assuming  that  exclusive  character.  Coition  takes  place 
very  frequa  itly  and  more  naturally  in  the  water.  It  is  a  polygamous 
animal  and  when  on  laud  exhibits  extreme  jealousy  to  guard  its  harem. 


SUMMARY    OF   THE    EVIDENCE. 


231 


but  wlietlier  tliix  disposition  is  preserved  and  exhibited  in  the  water,  and 
how  or  whether  this  is  a  disappearing  trait,  does  not  appear.  Two  pups 
are  not  infrequently  dropped  at  a  birth,  and  the  mothers,  with  a  generous 
disregard  for  the  ordinary  rules  of  maternity  in  nature,  suckle  their  own 
when  it  is  convenient,  but  take  up  other  pups  indifterently,  pro- 
vided the  strange  offspring  does  not  betray  the  odor  of  fresh  milk. 
By  this  indiscriminate  display  of  maternal  instinct  the  generality  of 
pups  are  supjmrted  until  they  are  able  to  procure  their  own  food. 
The  loss  of  an  individual  mother  becomes  in  consequence  of  this  a 
matter  of  small  moment,  and,  to  make  the  peculiarity  of  the  animal 
especially  renuirkable,  it  is  said  to  abstain,  during  several  weeks  of 
the  nursing  period,  from  seeking  food  for  itself  and  for  the  young 
offspring  that  would  generally  be  supposed  to  drain  its  vitality.  Such 
is  the  seal  and  such  are  the  habits,  especijilly  of  the  females,  as  seen 
and  described  by  the  British  Commissioners. 

The  expression  of  an  opinion  so  directly  in  conflict  vith  those  gen- 
erally received  would  seem  to  require  the  most  cogent  proofs.  Reliable 
authorities  should  be  cited  and  their  name.;  given.  Hazardous  conjec- 
tures shoiUd  be  wisely  laid  aside;  ignorant,  hasty,  and  prejudiced  gos- 
sip should  be  treated  as  it  deserves,  and  some  etiort  made  to  reconcile 
individual  observation  with  generally  accepted  and  accredited  facts. 

The  counsel  for  the  United  States  have  no  hesitation  in  saying  that 
if  the  question  to  be  decided  were  one  in  which  the  common-law  rules 
of  evidence  prevalent  in  both  i)arties  to  the  Treaty  were  applied,  they 
would  respectfully  insist,  with  mucl'  •  'i.'ldence,  that  there  is  no  d/spM^e 
really  as  to  the  main  facts  in  this  case.  A  controversy  as  to  facts  in 
the  juridical  sense  implies  an  assertion  on  the  one  side  and  a  contra- 
diction on  the  other;  but  contradictions  (jan  not  be  predicated  on  state- 
ments unauthenticated  by  proof  and  unsupported  by  general  experience. 
It  would  suffice  to  show  that  the  Report  of  the  Commissioners  from 
Great  Britain  simply  presents  the  assertions  and  conjectures  of  gentle- 
men who,  however  respectable  their  character  may  be,  were  not  called 
upon  to  express,  and  are  not  justified  in  laying  down  conclusions,  except 
in  so  far  as  they  have  reached  them  by  an  examination  into  actual  fat'ts, 
the  sources  of  which  both  Governments  would  be  entitled  to  consider. 
Justice  to  the  disputants,  as  well  as  a  proper  respect  for  the  Tribunal, 
would  seem  to  dictate  this  necessity  of  avoiding  the  rash  expression  of 
coi^jectares  generally  unsupported,  but  occasionally  founded  on  other 


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232 


ABQUBIENT  OP   THE    UNITED   STATES. 


like  coi^ectures  emanating  from  ignorance  and  Iiasty  observers  whose 
names  are  not  infrequently  withheld. 

It  may,  liowever,  facilitate  the  learned  Arbitrators  in  inquiries  into 
the  facts  referred  to,  to  indicate  the  nature  of  the  evidence  bearing 
upon  the  different  points  respectively  and  the  places  where  it  may  be 
found.  It  is  believed  that  nothing  more  is  requisite.  Of  matters  not 
in  any  manner  drawn  in  question,  little  or  no  notice  will  be  taken. 

n.— The  Difference  between  the  Alaskan  and  the  Russian 

Fub-Seals. 


The  marked  differences  between  the  Alaskan  and  the  Russian  seals 
are  such  as  to  be  plainly  and  readily  discer  >  to  persons  familiar 
with  the  two  herds  and  their  characteristic  ais  once  established 

would  naturally  prove  that  there  is  no  commingling  of  the  respective 
herds.  But  we  are  not  left  to  inference  upon  this  point,  and  may  con- 
fidently claim  that  the  proposition  is  affirmatively  established  by  testi- 
mony respectable  and  creditable  in  itself,  while  it  is  wholly  uncontra- 
dicted by  proof. 

This  is  the  statement  in  the  Case  of  the  United  States: 

The  two  great  herds  of  fur-seals  wliich  frequent  the  Bering  Sea  and 
North  Pacific  Ocean  and  make  their  jomes  on  the  Pribilof  Islands  and 
Commander  (Kouiandorski)  Islands,  respectively,  are  entirely  distinct 
from  each  other.  The  difference  betxreen  the  two  herds  is  so  marked 
that  an  expert  in  handling  and  sort!  ig  seal  skins  can  invariably  dis- 
tinguish an  Alaskan  skin  ftv  m  a  Con mander  skin.  In  support  of  this 
we  have  abundant  and  most  respectable  testimony.  oVlr.  Walter  E. 
Martin,  head  of  the  London  firm  of  C.  W.  Martin  &  Co.,  which  has 
been  for  many  years  engaged  in  dressing  and  dyeing  seal  skins,  de- 
scribes the  difference  as  follows:  "Thi  Copper  Island  (one  of  the  Com- 
mander Islands)  skins  show  that  tho  animal  is  narrower  in  the  neck 
and  at  the  tail  than  the  Alaska  seal  'i,nd  the  fur  is  shorter,  particularly 
under  the  flippers,  and  the  hair  has  a  yellower  tinge  than  the  hairs  of 
the  Alaska  seals." 

In  this  statement  he  is  borne  out  by  Snigeroft",  a  native  chief  on  the 
Commander  Islands  and  once  resident  on  the  Pribilof  Islands. 

O.  W.  Price,  for  twenty  years  a  dresser  and  examiner  of  raw  seal- 
skins, describes  the  difftjrence  in  the  fur  as  being  a  little  darker  in  the 
Commander  skin.  The  latter  skin  is  not  so  porous  as  the  Alaskan  skin, 
and  is  more  dillicult  to  unhair.  The  difference  between  the  two  classes 
of  skins  has  been  further  recognized  by  those  engaged  in  the  seal-skin 
industry  in  their  different  market  value,  the  Alaska  skins  always  being 
held  from  20  to  30  per  cent  more  than  the  "Coppers"  or  Commander 
skins.  This  difference  in  value  has  ahso  been  recognized  by  the  Russian 
Goveinmeut. 


BUMMABY   OF  THE   EVIDENCE. 


233 


(A)  THE  HERDS  ABE  DIFFERENT, 

Mr.  Ooorge  Bantle  (p.  508,  Appendix  to  Case  of  the  United  States, 
Vol.  II),  one  of  the  witnesses  upon  this  jKiint,  is  a  packer  and  sorter  of 
raw  fur-kins.  He  had  been  in  that  business,  at  the  time  of  testifying, 
twenty  years,  and  had  handled  many  thousands  of  skins.    Ue  says: 

lean  tell  by  examining  a  skin  ichether  it  was  caught  in  season  or  out 
of  season,  and  whether  it  was  caught  on  the  Russian  side  or  on  the  Ameri- 
can side.  A  Kussian  skin  is  generally  coarser,  and  the  under  wool  is 
generally  darker  and  coarser,  than  tlie  skins  of  seals  caught  on  the 
American  side.  A  Kussian  skin  does  not  make  as  tine  a  skin  as  the 
skins  of  the  seals  caught  on  the  American  side,  and  are  not  worth  as 
much  in  the  market.     !  can  easily  distinguish  one  from  the  other. 

Mr.  H.  8.  Bevington,  M.  A.  {ibid.,  p.  551),  a  subject  of  Her  Britannic 
Majesty,  forty  years  of  age,  the  head  of  the  firm  of  Bevington  &  Mor- 
ris, 28  Common  street,  in  the  city  of  London,  was  sworn  and  testified 
upon  the  subject.  His  testimony  is  interesting,  and  may  be  found  at 
page  550,  Volume  ii,  of  the  Appendix  to  United  States  Case.  Upon  the 
subject  of  the  variations  observable,  he  says : 

That  the  differences  between  the  three  several  sorts  of  skins  last 
mentioned  are  so  marked  as  to  enable  any  person  skilled  in  the  busi- 
ness or  accustomed  to  handle  the  same  to  readily  distinguish  theskiiis 
of  one  catch  from  those  of  another,  especially  in  bulk,  and  it  is  the  ftict 
that  when  they  reach  the  market  the  skins  of  each  class  come  sei)ar- 
ately  and  are  not  found  mingled  with  those  belonging  to  the  other 
classes.  The  skins  of  the  Copper  Island  catch  are  distinguished  from 
the  skins  of  the  Alaska  and  Northwest  catch,  which  two  last-mentioned 
classes  of  skins  appear  to  be  nearly  allied  to  each  other  and  are  of  the 
same  general  character,  by  reason  of  the  fact  that  in  their  raw  state  the 
Copper  skins  are  lighter  in  color  tluin  either  of  the  other  two,  and  in 
the  dyed  state  there  is  a  marked  difference  in  the  appearan(;e  of  the 
fur  of  the  Copper  and  the  other  two  classes  of  skins.  This  difference 
is  difficult  to  describe  to  a  person  unaccustomed  to  handle  skins,  but  it 
is  nevertheless  clear  and  distinct  to  an  expert,  and  may  be  generally  de- 
scribed by  saying  that  the  Copper  skins  are  of  a  close,  short  and  shiny 
fur,  particularly  down  by  the  flank,  to  a  greater  extent  that  the  Alaska 
and  Northwest  skins. 

Joseph  Stanley-Brown  {ibid.,  p.  12)  a  geologist  of  distinction,  resid- 
ing at  Mentor,  Ohio,  was  commissioned  by  the  Secretary  of  the  Treas- 
ury to  visit  the  Pribilof  Islands  for  the  purpose  of  studying  the  seal 
life  found  thereon ;  he  spent  one  hundred  and  thirty  days  in  actual  inves- 
tigation and  study  of  the  subject.  While  he  does  not  claim  to  have 
becoiue  an  expert  in  that  time  as  to  the  various  and  distinguishing 


ili: 


!*' 


234 


AEQTJMENT  OP  THE   UNITED  S'f  ATEa 


characteristics  of  the  animals,  he  stated  the  result  of  his  efforts  to 
ascertain  the  truth  in  this  respect: 

I  learned  that  fur-seals  of  the  species  Callorhinvs  ursinns  do  breed 
and  haul  (uit  .it  the  Couiinander  Islands  and  "  ilobben  lieef,"  but  the 
stiitementN  made  to  me  were  unanimous  that  they  are  a  separate  herd,  the 
pelt  of  whicli  is  readily  distinguished  from  that  of  the  Pribilof  herd,  and 
that  the  two  herds  do  not  intermingle. 

Isaac  Liebes,  a  fur  merchant  of  twenty-three  years  standing,  residing 
at  San  Francisco,  claims  to  have  handled  more  raw  fur-aeal  skins  than 
any  other  individual  in  the  United  States  or  Canada  and  more  than 
any  iirm  or  corporation  except  thelesseesof  the  sealeries  of  the  Pribilof 
and  Commander  Islands.  His  whole  deposition,  based  as  it  is  upon 
long  practice  and  experience,  may  be  read  with  profit.  On  the  subject 
of  the  (Tiflerences  between  tlie  skins  of  animals  belonging  to  the  re- 
spective herds,  he  says :  {ibid.^  p,  445.) 

The  seals  to  which  I  have  reference  are  known  to  myself  and  to  the 
trade  as  the  Northwest  Coast  seals,  sometimes  called  "Victorias." 
Tins  herd  belongs  solely  to  the  Pribilof  Islands,  and  is  easily  distinguish- 
able by  the  fur  from  the  fur-seals  of  the  other  nortl.ern  rookeries,  and 
still  easier  fit-om  those  of  the  soutii.  All  expert  seahcin  assorters  are  able 
to  tell  one  from  the  other  of  either  of  these  different  herds.  Each  has  its 
own  characteristics  and  values. 

To  the  same  effect  is  the  deporltion  of  Sidney  Liebes,  a  far  d'-aler  of 
Sau  Francisco.  He  had  been  engaged  in  the  fur  business  for  the  laist 
six  years,  at  the  time  of  testifying.  He  testified  in  substance,  as  did 
the  other  witnesses,  as  follows  {ibid.,  p.  516): 

My  age  is  22  1  reside  in  Smi  Francisco,  and  am  by  occupation  a 
furrier,  having  been  engaged  in  that  business  lor  the  last  six  years. 
I  Lave  made  it  my  business  to  cxiiiiiiiie  raw  sea!  skins  brought  tf>  this 
city  for  sale,  and  am  familiar  witli  the  ditleient  kinds  of  seal-skins  in 
tlie  market,  1  can  tell  from  an  examination  of  a  skin  whether  it  has 
been  caught  on  the  liussian  or  American  side.  1  have  found  that  the 
liussiaii  skins  were  fiat  and  smaller,  and  someAvhat  different  in  color 
in  the  under  wool,  than  those  caught  on  the  American  side.  In  my 
ojiinion  they  are  of  an  inferior  quality.  The  Alaska  skins  are  larger 
and  the  hair  is  nmch  finer.  The  color  of  the  under  wool  is  also  differ- 
ent. I  have  no  dilficulty  in  distinguishing  one  skin  from  the  other.  1 
am  of  o]»inion  that  th«\v  belong  to  an  entirely  separate  and  distinct 
herd.  In  my  examination  of  skins  offered  for  sale  by  sealing  schooners 
1  found  that  over  (to  jtcr  cent  were  skins  taken  from  females.  The 
sides  of  tiie  fenuile  skins  are  swollen,  and  are  wider  on  the  belly  than 
those  of  males.  Tiie  teats  arc  very  discernible  on  the  females,  and  it 
can  be  plainly  seen  where  the  young  have  been  suckling.  The  head  of 
the  female  is  also  mack  narrower. 


SUMMARY    OF   THE    EVIDENCE. 


235 


Mr.  Tl)omas  F.  Morgiiu  was  the  agent,  in  1891,  (»i  the  Enssian  Sealskin 
Company  of  Petersburg.  Prior  to  that  time  lie  had  been  engaged  in 
seal  fishing;  he  resided  several  years,  as  agent  of  the  Alaska  Commer- 
cial Company,  on  the  Pribilof  Islands.  His  long  and  varied  experience 
fitted  liira  in  an  especial  mauuer  to  testify  intelligently  on  the  subject. 
He  says  {ibid.,  p.  61) : 

The  Alaska  fur-seal  breeds,  I  am  thoroughly  convinced,  only  upon  the 
Pribilof  Inlands;  that  I  hav*»  been  on  the  Alaska  coast  and  also  along 
the  Aleutian  Islands;  that  at  no  ])oints  have  I  ever  observed  seals  haul 
out  on  hunt  except  at  the  Pribilof  Islands,  nor  have  I  been  able  to 
obtain  aiiy  authentic  information  which  causes  me  to  believe  such  is 
the  case. 

The  Alaska  fur-seal  is  migratory,  leaving  the  Pribilof  Islands  in  the 
early  winter,  going  southward  into  the  Pacific  and  returning  again  in 
May,  June,  and  July  to  said  islands.  I  have  observed  certain  bull 
seals  return  year  after  year  to  the  same  place  on  the  roolierics,  aiul  I 
have  been  informed  by  natives  that  have  lived  on  tlje  islands  that  this 
is  a  well-known  fact  and  has  been  observed  by  them  so  often  that  they 
stated  it  as  an  absolute  fact. 

It  :.8  also  interesting  to  note,  from  his  supplemental  sworn  statei  lent, 
that  the  British  Commissioners  hjid  some  testimony  to  show  that  there 
was  no  identity  between  the  herds  (ibid.,  p.  201) : 

I  was  on  the  Bering  Island  at  the  same  time  that  Sir  George  Baden- 
Powell  and  Dr.  George  M.  Dawson,  the  British  representative's  of  the 
Bering  Sea  Joint  Commission,  were  upon  said  island  investigating  the 
Ilussian  sealeries  upon  the  Komandorski  Islands;  that  I  was  present 
at  an  examinatica,  which  said  (Commissioners  beld,  of  tSniogeroff,  the 
chief  of  thf*  natives  oi  the  Bering  Island,  who,  prior  to  the  cession  of 
the  Pribilof  Islp.nds  y  Russia  to  the  United  States,  had  resided  on  St. 
Paul,  one  of  the  si  d  Pribilof  Islands,  and  that  since  that  time  had 
been  a  resident  on  said  Bering  Islan<i,  and  during  the  latter  jtart  of 
said  residence  had  occupied  the  jiosition  of  native  chief,  and  as  smdi, 
superintended  the  taking  and  killing  of  fur-seals  on  said  Boring 
Island;  that  during  said  examination  uhe  Conunissioners,  throngli  an 
interpreter,  asked  said  Sniegorofl'  if  there  was  any  difference  between 
the  seals  found  on  the  Pribilof  Islinds  and  the  seals  found  on  the 
Komandorski  Islands;  that  said  Sjiiogeroff  at  once  replied  that  there 
was  adiflference,  and  on  further  qui^stioning  stated  tliat  such  dillerence 
consisted  in  the  fact  that  the  K»»mandorski  Island  seals  were  a  slimmer 
animal  in  the  neck  and  flank  than  the  Pribilof  Island  seals;  and  fur- 
ther, that  both  hair  and  tiir  of  the  Komandorski  Island  seal  were 
longer  than  the  Pribilof  Island  seal;  said  Commissioners  asked  said 
Saiegeroft'  the  further  question  whetler  he  believed  that  the  I'libilof 
herd  and  Komandorski  nerd  ever  mingled,  and  he  reijlied  thai  lie  did 
not. 

Mr.  John  K  Lofstad  {ibid.,  p.  516,)  a  fur  merchant  of  San  Francisco, 
testi&es  that  he  can  easily  distinguish  the  Copper  Island  seal  iu  its 


^ 


l<  lii! 


\b 


11,1 


lf^!:i 


I    II 


236 


ARGUMENT  OF   THE    UNITED   STATES. 


nndressed  state  from  that  of  tbe  Alaskan  and  Northwest  Coast  skinB. 
They  are  of  an  entirely  distinct  and  separate  herd,  while  those  of  the 
Northwest  Coast  and  Pribilof  Islands  are  of  the  same  variety.  He 
says: 

I  have  been  in  the  business  for  twenty-eight  years  during  which  time 
I  have  bought  large  numbers  of  dressed  and  undressed  fur  skins,  and 
I  am  thoroughly  familiar  with  the  business.  I  can  easily  distinguish 
the  Copper  Island  flir-seal  skin  in  its  undressed  state  from  that  of  the 
Alaskan  and  Northwest  Coast  skins.  They  are  of  an  entirel.'  distinct 
and  separate  herd,  while  those  of  the  Northwest  Coast  and  Pribilof  la- 
lands  are  of  the  same  variety. 

To  the  same  eflfect  Mr.  Gustave  Niebaum  {ibid.,  p.  78),  Mr.  Niebaum's 
experience  was  such  as  to  entitle  him  to  speak  as  an  expert.  His 
opportunities  to  inform  himself  thoroughly  on  all  matters  connected 
with  sealeries  were  of  the  best,  and  at  the  same  time  he  had  no  interest 
whatever  in  the  sealeries  or  the  seal-skin  trade.  He  is  a  native  of  Fin- 
land and  became  an  American  citizen  by  the  transfer  of  Alaska  to  the 
United  States.  He  was  vice-consul  of  Kussia  at  San  Francisco  from 
1880  to  1891.    He  says: 

I  was  formerly,  as  I  have  stated,  interested  in  the  Commander 
seal  islands,  as  well  as  those  of  Alaska.  The  two  herds  are  separate 
and  distinct,  the  fur  being  of  diflerent  quality  and  appearance.  The 
two  classes  of  skins  have  always  been  held  at  different  values  in  the 
London  market,  the  Alaskan  bringing  invariably  a  higher  price  than 
the  Siberian  of  the  same  weight  and  size  of  skins.  I  think  each  herd 
keeps  upon  its  own  feeding  grounds  along  the  respective  coasts  they 
inhabit. 

It  may  be  unnecessary — as  it  would  certainly  be  monotonous — to 
multiply  citations.  Other  witnesses,  however,  testify  to  the  same  effect. 
The  American  Commissioners  have  given  their  names  and  addresses, 
as  well  as  their  sworn  statements.  The  Arbitrators  will,  therefore,  be 
enabled  to  determine  whether  or  not  the  evidence  i»,  as  we  claim  that 
it  is,  absolutely  conclusive.  In  a  court  of  law,  such  a  concensus  of 
opinion  and  statement  made  under  the  sanction  of  an  oath  and  uncon- 
tradicted, save  by  more  or  less  ingenious  but  unsustained  conjecture, 
would  satisfy  the  judgmewt  of  the  most  exacting  judge.  Other  depo- 
sitions equally  important  may  be  quoted  in  addition  to  the  above. 

Mr.  Walter  E.  Martin  {ibid.,  p.  569),  was,  at  the  time  of  giving  his 
testimony,  a  subject  of  Her  Majesty,  residing  at  the  city  of  St.  Albans. 
He  had  been  engaged,  on  a  very  large  scale,  in  the  business  of  dress- 


SUMMARY   OP  THE   EVIDENCE. 


237 


ing  and  dyeing  sealskins.  He  says  that  if  one  thousand  Copper  Island 
skins  wore  mingled  among  ninety-nine  thousand  Alaska  skins,  it  would 
be  possible  for  any  one  skilled  in  the  business  to  extract  nine  hundred 
and  fifty  of  the  Copper  Island  skins  and  to  separate  them  from  the 
ninety-nine  thousand  and  fifty  of  the  Alaska  catch,  and  vice  versa. 

Mr.  N.  B,  Miller  (ibid.,  p.  199).  Mr.  Miller  was  at  the  time  of  testi- 
fying an  assistant  in  the  scientific  department  of  the  United  States  Fish 
Commission  steamer  Albatross.  He  had  made  five  cruises  in  Alaskan 
waters;  he  says: 

The  seals  of  the  Commander  Islands  are  grayer  in  color  and  of  a 
sligiitcfr  build  throughout  the  body.  The  bulls  have  not  such  heavy 
manes  or  fur  ca])es,  the  hair  on  the  shoulders  being  mucth  shorter  and 
not  nearly  so  thick.  The  younger  seals  have  longer  and  more  slender 
necks  apparently.    I  noticed  this  dilTcrence  between  the  seals  at  once. 

Mr.  John  J.  Phelan  {ibi'l.,  p.  518)  was  a  citizen  of  the  United  States 
and  a  resident  of  Albany,  N.  Y.  He  was  35  years  of  age  at  the  t'me  of 
giving  his  deposition,  and  since  the  age  of  eleven  had  been  in  the  fur 
business.  His  praitical  and  active  experience  was  very  large  during 
those  twenty-three  years.  He  had  noticed  the  diH<rence  in. the  seals, 
both  in  their  raw  state  and  miring  the  pri "esses  of  dressing.  He 
explained  minutely  the  point  of  dil'i  vence. 

Mr.  Henry  Poland  [ibid.,  p.  570)  was  a  subjcrt  of  Her  Majesty 
and  the  head  of  the  firm  of  P.  R.  Polar  '1  &  Son,  doing  business  at 
110  Queen  ^'ictoria  street,  in  the  city  of  ondon.  The  firm  of  which 
he  was  a  member  had  been  engaged  in  tJie  ))usines8  of  furs  and  skins 
for  upwards  of  one  hundred  years,  having  been  founded  by  his  great- 
gran'lfather  in  the  year  1785.  His  judgmoni  evidently,  is  entitled  to 
great  respect.  He  corroborates  the  otlier  a\  itnesses,  and  says  that  the 
three  classes  of  skins  are  easily  distinguishable  from  each  other  by  any 
person  skilled  in  the  business.  He  had  personally  handled  the  sam- 
ples of  the  skins  dealt  in  by  his  firm,  and  would  have  no  difficulty  in 
distinguishing  them.  In  fact,  the  skins  of  each  of  the  tliree  classes 
have  different  values  and  command  different  prices  in  the  market. 

Mr.  Charles  W.  Price  {ibid.,  p.  521)  is  a  very  expert  examiner  of  raw 
fur-skins,  of  San  Francisco.  He  had  been  engaged  in  the  business 
twenty  years  when  he  was  examined  by  the  Commissioners  of  the  United 
States;  he  had  had  a  large  practical  experience.  He  gives  the  points 
of  differeiu'e  between  the  llussian  and  American  skins,  and  states, 
as  did  Mr.  Poland  and  other  witnesses,  that  the  £eaIo  oi^  the  Russian 


••!,  i^f- 


^r 


238 


ARGUMENT   OF   THE   UNITED   STATES. 


f  I 


side  are  a  distinct  and  diffcreut  herd  from  those  on  the  American  side, 
and  are  not  as  valuable. 

Mr.  George  Eice  {ibid.,  p.  572)  is  another  witness  whose  testimony 
should  command  respect.  He  was  fifty  years  of  age  and  a  subject 
of  Her  Majesty.  He  had  been  engaged  actively  in  the  business 
handling  fur-seal  skins  for  twenty-seven  years  and  had  acquired  a 
gc.eral  and  detailed  knowledge  of  the  different  kinds  of  fur-seal  skins 
and  of  the  differences  which  distiucruish  them,  as  well  as  the  history, 
character,  and  manner  of  conducting  the  fur-seal  sealskin  business  in 
the  city  of  London.  He  says  that  the  differences  between  the  several 
classes  of  skins  are  very  marlced,  which  enable  anybody  who  is  skilled 
in  the  business  to  distinguish  the  skins  of  one  class  from  the  skins 
which  belong  to  either  of  the  other  classes.  He  also  stated,  as  did  the 
other  experts,  that  these  differences,  are  evidenced  by  the  fact  that  the 
skins  obtain  different  prices  in  the  market.  The  testimony  of  this  gen- 
tleman deserves  special  attention}  it  is  intelligently  given  and  is  very 
instructive. 

Mr.  Leon  Sloss  {ibid.,  p.  90)  is  a  native  of  California  and  a  resi- 
dent of  San  Francisco.  He  was  for  several  years  a  director  of  the 
Alaska  Commercial  Company,  and  a  member  of  the  partnership 
of  Louis  Sloss  &  Co.,  and  had  been  engaged  for  fifteen  years  in  dealing 
in  wools,  hides,  and  fur-skins.  At  the  time  of  testifying,  he  had  no 
interest  in  seals  or  sealeries.  He  had  been  superintendent  of  the 
Alaska  sealeries  pro  tempore  from  1882  to  1885,  inclusive,  and  spent 
the  scaling  season  of  those  three  years  on  the  Pribilof  Islands  in  the 
personal  management  of  the  business.  He  became  acquainted,  as  he 
testifies,  with  every  aspect  of  the  business.  All  advices  from  the  Lon- 
don agents  and  information  in  regard  to  the  sealskin  market,  from  all 
sources,  passed  through  his  hands,  and  instructions  to  ageiits  of  the 
company  in  regard  to  the  classes  of  skins  desired  emanated  from  time 
to  time  from  him.  He  was  emphatic  in  his  statement  that  the  difference 
between  the  Northern  and  Southern  skins  that  can- .  to  the  port  of  San 
Francisco  could  be  detected  at  once.  While  it  was  not  as  easy  to  dis- 
tinguish the  Alaskan  from  the  Asiatic  skins,  experts  in  handling  them 
do  it  with  unerring  accuracy. 

Mr.  William  C.  B.  Stamp  {ibid.,  p.  574)  was  61  years  of  age  at  the 
time  of  testifying,  and  a  subject  of  Her  Majesty.  He  was  engaged  in 
the  business  at  38  Knightrider  street,  London,  E.  C,  as  a  fur-skin 
merchant.    He  had  been  engaged  in  that  business  for  over  thirty 


SUMMARY    OF   THE    EVIDENCE. 


239 


years  and  had  personally  handled  many  thousand  of  fur-seal  skins, 
besides  inspecjtuig  samples  at  practically  every  sale  of  fur  skins  made 
in  London  during  the  whole  of  the  time  he  had  been  in  business. 
He  had  thus  acquired  a  general  and  detailed  knowledge  of  the  hist  ry 
of  the  business  and  of  the  chara(!ter  and  differences  which  distinguish 
the  several  kinds  of  skins  on  the  market.  He  stated  it  as  his  judgment 
that  the  skins  of  the  several  catches  are  readily  distinguishable  from 
each  other,  and  the  skins  of  the  different  sexes  may  be  as  readily  dis- 
tinguished as  the  skins  of  the  different  sexes  of  any  other  animal.  He 
added  that  the  difference  between  the  skins  of  the  three  catches  are  so 
marked  that  they  have  always  been  expressed  in  the  different  i)rices 
obtained  for  the  skins.  He  instances  the  sales  on  the  list,  which  were 
as  follows :  For  the  Alaska  skins,  125  shillings  per  skin ;  for  the  Copper 
skins,  68  shillings  per  skin ;  and  for  the  Northwest,  53  shillings  per 
skin. 

Emil  Teichmann  {ibid.,  p.  576),  was  by  birth  a  subject  of  the  King- 
dom of  Wurtemburg,  and  had  become  a  naturalized  citizen  of  He? 
Majesty  from  the  time  of  reaching  his  manhood.  He  was  46  years 
of  age  at  the  time  of  testifying.  He  had  been  engaged  in  the  fur 
business  since  1868,  and  had  resided  in  England  and  done  business 
in  London.  From  1873  to  1880,  he  had  been  a  member  of  the  firm  of 
Martin  &  Teichmann,  who  were  then,  as  its  successors  C.  W.  Martin  & 
Son  still  are,  the  largest  dressers  and  dryers  of  sealskins  in  the  world. 
He  had  personally  handled  many  hundreds  of  thousands  of  fur-seal  sldns 
and  claimed  to  be,  as  well  he  might,  an  expert  on  the  subject  of  the 
various  kin<ls  of  such  skins.  His  testimony  is  minute  and  gives  de- 
tails as  to  the  peculiarities  which  distinguish  the  skins.  He  states  that 
all  those  differences  are  so  marked  as  to  enable  any  expert  readily  to 
distinguish  Copper  from  Alaska  skins,  or  vice  versa,  although  he  adds 
that  in  the  case  of  very  young  animals  the  differences  are  much  less 
marked  than  in  the  case  of  adults. 

George  TI.  Treadwell  {ibid.,  p.  523),  at  the  time  of  testifying,  was  55 
fyears  of  age.  He  was  a  citizen  of  the  United  States  and  a  resident 
of  Albany  County,  in  the  State  of  New  York.  His  father,  George 
O.  Treadwell,  in  1832,  started  a  wholesale  fur  business  of  a  general 
character,  and  his  son,  the  witness,  became  associated  with  him  in 
1858,  and  upon  his  death,  which  occurred  in  1885,  he  succeeded  to 
the  business.  That  business  is  now  conducted  under  the  name  of 
The  George  C.  Treadwell  Coini)any,  a  cori)oratiou  formed  under  the 


t  I 


j'S'i 
'HI 


iJi 


240 


ARGUMENT   OF    THE    LNITED   STATES. 


laws  of  the  State  of  New  Jersey,  of  wli  ich  corporation  the  deponent  is 
president.  He  entirely  agrees  with  wLat  Mr.  Phelan  says  concerning 
his  experience  in  the  handling  and  dre:^sing  of  skins,  and  irom  what 
he  knows  of  his  character  and  abil'ty  ho  believes  that  everything 
stated  by  him  in  his  afQdavit  is  correct. 

Henry  Treadwell  {ibid.,  p.  624),  at  the  time  of  testifying,  was  70  years 
of  age  and  resided  in  the  city  of  Brooklyn,  in  the  State  of  New  York. 
He  was  a  member  of  the  firm  of  Treadwell  &  Company,  which  had  been 
dealing  in  furs  since  1832;  they  bought,  dressed  and  dyed  annually 
from  5,000  to  8,000  skins.  Mr.  Treadwell  was  very  emphatic  in  his 
statement  that  the  skins  of  the  three  catches  are  readily  distinguish- 
able. He  stated  that  he  would  be  able,  himself,  on  an  examination  of 
the  skins  as  tliey  are  taken  from  the  barrels,  to  detect  at  once  in  a 
barrel  of  Alaska  skins  the  skins  of  either  the  Copper  or  the  northwest- 
ern catch. 

William  H.  Williams  {ihid.,  p.  93)  is  a  citizen  of  the  United  States, 
residing  at  Wellington,  Ohio,  and  was  at  the  time  of  testifying  the 
United  States  Treasury  Agent  in  the  charge  of  the  seal  islands  in 
Bering  Sea.  As  such  and  in  pursuance  of  Department  instruuticms, 
he  made  a  careful  examination  of  the  habits  and  conditions  of  the 
seals  and  seal  rookeries,  with  a  view  of  reporting  to  the  Department 
his  observations.  He  says,  agreeing  in  this  with  the  numerous  other 
witnesses  whose  testimony  is  above  given,  that  the  skins  of  the  three 
catches  are  readily  distinguishable  from  each  otber.  He  also  states 
that  the  differences  are  clearly  evinced  in  the  prices  which  have 
always  been  obtained  for  the  sealskins  of  the  three  catches.  For  in- 
stance, the  skins  of  the  Alaska  catch  were  then  commanding  20  or  30 
per  cent  better  prices  than  the  skins  of  the  Copper  o"^  l.  This  differ- 
ence is  also  recognized  by  the  Eassiau  Government,  who  leased  the 
privilege  of  catching  upon  the  Commander  Islands  upon  terms  25  per 
cent  less  than  the  terms  of  the  United  States  for  the  leased  catch  upon 
the  Pribilof  Islands. 

Mr.  Maurice  Windmiller  {ibid.,  p.  550)  was  a  furrier  doing  business 
in  San  Francisco,  in  which  business  he  had  been  engaged  all  his  life, 
his  father  having  been  a  furrier  before  him.  He  was  46  years  of  age 
axtC,  claimed  to  be  an  expert  in  dressed  and  undressed,  raw  and  made- 
up  furs,  auc!  a  manufacturer  and  dealer  in  the  same.  He  was  also  of 
opinion  tl\i\t  the  Kussian  seal  belonged  to  an  entirely  different  herd 
from  those  of  the  American  side,  and  testified  that  their  skins  had 
such  peculiar  characteristics  that  it  was  not  difficult  to  separate  them. 


SUMMARY    OF   THE   EVIDENCE. 


241 


(B)  TUB  ALASKAN    DOES    NOT    MINGLE    WITH    THE    RUSSIAN  HERD. 

The  statement  iii  the  Case  (p.  99)  is  in  the  following  words: 

The  Commander  Islands  herd  is  evidently  distinct  and  separate  from 
the  Pribilof  Islands  herd.  Its  home  is  the  Commander  group  of  islands 
on  the  westei  n  side  of  Bering  Sea,  and  its  line  of  migration  is  west- 
ward and  sout  iward  along  the  Asiatic  coast.  To  suppose  that  the  two 
herds  mingle  and  tbat  the  same  animal  may  at  one  time  be  a  member 
of  one  herd  and  at  another  time  of  the  other  is  contrary  to  what  is 
known  of  the  habit  of  migrating  animals  in  general. 

This  statement  is  based  on  the  report  of  the  American  Commissioners 
(page  323  of  the  Case  of  the  United  States),  which  report  states  the 
conclusion  reached  by  them  in  the  following  language: 

The  fur-seals  of  the  Pribilof  Islands  do  not  mix  with  those  of  the 
Commander  and  Kurile  Islands  at  any  time  of  the  year.  In  summer, 
the  two  herds  remain  entirely  distinct,  separated  by  a  water  interval 
of  several  hundred  miles,  and  in  tlieir  winter  migrations  those  from 
the  Pribilof  Islands  follow  the  American  coast  in  a  southeasterly  di- 
rection, while  those  from  the  Comn  ander  and  Kurile  Islands  follow  the 
Siberian  and  Japan  coasts  in  a  sou'.'iwesterly  direction,  the  two  herds 
being  separated  in  winter  by  a  water  interval  of  several  thousand  miles. 
This  regularity  in  1  Le  different  herds  is  in  obedience  to  the  well-known 
law  that  migratory  animals  follow  definite  routes  in  migration  and  return 
year  after  year  to  the  same  places  to  breed.  Were  it  not  for  this  law, 
there  would  be  no  such  thing  as  stability  of  species,  for  interbreeding 
and  eyistence  under  diverse  physiographic  conditions  would  destroy 
all  specihc  characters. 

The  testimony  in  support  of  this  proposition  seems  to  be  conclusive 
and  certainly  must  stand  until  the  learned  counsel  for  tl  j  Government 
of  Her  Majesty  succeed  in  producing  the  evidence  of  witnesses  who  are 
able  and  willing  to  express  a  different  view. 

It  can  not  be  expected  that  the  witnesses  shall  speak  in  the  same 
positive  and  unqualified  manner  Vipon  this  matter,  which,  to  some  ex- 
tent, must  be  predicated  upon  conclusions  drawn  from  facts,  as  they 
would  and  do  upon  the  actual  and  observable  differences  between  the 
two  families  of  seals.  But  it  vill  be  found  that  the  *^estiJuony  is  the 
best  obtainable  under  the  circumstances  and  can  leave  iio  reasonable 
doubt  in  the  minds  of  impartial  persons  that  the  two  herds  are  distinct, 
that  they  follow  definite  routes  in  migration,  and  that  they  return 
year  after  year  to  the  same  place  to  breed  and  never  intermingle. 

Mr.  John  Q.  Blair  (Appendix  to  Case  of  the  United  States,  Vol.  II, 
p.  193)  was  at  the  time  of  deponing  an  American  citizen,  57  years  ot 
age,  and  had  been  for  fourteen  years  previous  and  until  recently  master 
U749 16 


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242 


ARGUMENT   OF   THE    UNITED   STATES. 


of  the  schooner  Leon,  then  employed  by  the  Eussian  Sealskin  Com- 
pany. He  had  been  constantly  engaged  in  the  fur-sealing  industry 
and  was  familiar  with  the  habits  of  these  animals,  both  on  the  land 
and  in  the  water.  He  was  in  charge  of  and  attended  to  the  killing  of 
seals  on  llobben  Island  for  the  lessees  from  1878  to  1883,  taking  from 
1,000  to  4,000  seals  per  annum.  With  the  exception  of  two  years, 
when  he  was  sealing  on  the  Commander  Islands,  he  had  visited  Kob- 
ben  Island  every  year  from  1878  to  1885.  His  testimony  upon  this 
point  is  as  follows: 

I  am  told  and  believe  that  the  Robben  Island  seals  can  be  distinguished 
by  experts  from  those  on  the  Commander  Islands,  and  am  satisfied  that 
they  do  not  mingle  vitVi  them  and  are  a  separate  and  distinct  herd. 
They  remain  (m  and  about  the  islands  in  large  numbers  until  late  in  the 
fall.  I  have  been  accustomed  to  leave  in  October  or  early  November, 
and  seals  were  always  plentiful  at  that  time.  I  am  of  opinion  that  they  do 
not  migrate  to  any  great  distance  from  the  island  during  the  winter.  A 
few  hundred  young  pups  are  caught  every  winter  by  the  Japanese  in 
nets  off  the  north  end  of  Yesso  Island.  I  have  made  thirty -two  voyages 
between  the  Aleutian  Archipelago  and  the  Commander  Islands,  but 
have  never  seen  seals  between  about  longitude  170  west  and  165  east. 
I  am  satisfied  that  Alaska  seals  do  not  mix  with  those  of  Siberia.  I 
have  seen  seals  in  winter  and  known  of  their  being  caught  upon  the 
Asiatic  side  as  far  south  as  36  north  latitude. 

William  H.  Brennan  {ibid.,  p.  358) :  Mr.  Brennan,at  the  time  of  testify- 
ing, resided  at  Seattle,  in  the  State  of  Washington.  He  was  an  English 
subject  by  birth  and  had  spent  the  best  part  of  his  life  in  the  close 
study  of  the  inhabitants  of  the  sea,  including  seals  and  the  modes  of 
capturing  them.  He  had  passed  his  examination  as  second  mate  in 
London  in  1874,  and  had  been  to  Australia,  China,  and  Japan.  In  the 
last  country  he  had  remained  several  years.  Since  that  time  he  has 
followed  the  sea  as  sailing  captain,  pilot,  and  quartermaster  on  vessels 
sailing  out  of  Victoria,  British  Columbia.    He  testified  as  follows: 

In  my  opinion,  fur-seals  born  on  the  Copper,  Bering,  or  Kobben 
islands  will  naturally  return  to  the  rookery  at  which  they  were  born. 
The  same  thing  is  true  of  those  born  on  the  St.  Paul  or  St.  George 
islands.  No  vessel,  to  my  knowledge,  has  ever  met  a  band  of  seals  in 
midocean  in  the  North  Pacific.  I  have  crossed  said  water  on  three 
different  occasions,  and  each  time  kept  a  close  lookout  for  them.  The 
greater  part  of  the  seals  that  we  find  in  the  North  Pacific  Ocean  are 
born  on  the  islands  in  Bering  Sea.  Moat  of  theiA  leave  there  in  Octo- 
ber and  November. 

0.  H.  Anderson  {ibid.,  p.  205) :  Mr.  Anderson  was  a  master  mariner  by 
occupation,  residingin  San  Francisco,  and  had  been  sailing  in  Alaskan 
Waters  since  1880.    He  says: 


SUMMARY   OF   THE    EVIDENCE. 


248 


1  tliink  the  Commander  Islands  seals  are  a  different  body  of  seals 
altogether  from  those  of  the  Pribilofs,  and  that  the  two  herds  never 
mingle.  I  think  the  Commander  Islands  herd  goe»to  the  southward 
and  westward  toward  the  Japanese  coast.  I  never  knew  of  ftir  seals 
hauling  out  to  rest  or  breed  at  any  jdace  ia  the  Aleutian  chain,  or 
anywhere,  in  fact,  except  the  well-known  rookeries  of  the  several  seal 
islands  of  Bering  Sea. 

Charles  Bryant  {ibid.,  p.  4) :  Mr.  Bryant,  at  the  time  of  testifying,  was 
72  years  of  age  and  had  resided  in  Plymouth  County,  Massachusetts. 
From  1840  to  1858  he  had  been  engaged  in  whaling  in  the  North 
Pacific  Ocean  or  Bering  Sea.,  During  the  latter  portion  of  the  time  he 
commanded  a  whaling  vessel.  In  1868  he  was  appointed  as  Special 
Treasury  Agent  to  go  to  the  1?ribilof  Islands  to  investigate  and  to 
report  as  to  the  habits  of  the  fur-seal,  the  conditions  of  the  islands  and 
the  most  advantageous  plan  to  adoi>t  for  the  government  and  manage- 
ment of  the  same.  He  remained  on  St.  Paul  Island  from  March,  1869, 
to  September  of  that  year.  He  returned  July,  1870,  and  remained 
until  the  fall  of  1871.  Then  in  April,  in  1872,  he  again  arrived  on  St. 
Paul  Island  as  Special  Agent  of  the  Treasury  Department  in  charge 
of  the  seal  islands,  and  he  spent  there  the  sealing  seasons  from  1872 
to  1877,  inclusive,  and  three  winters,  namely,  1872,  1874,  and  1876, 
since  which  time  he  has  lived  in  retirement  at  Mattapoisett,  Plymouth 
county,  Massachusetts.    His  testimony  upon  this  point  is  as  follows: 

The  AlasM  fur-seal  breeds  nowhere  except  on  the  islands.  I  took  par- 
ticular care  in  investigating  the  question  of  what  became  of  the  seal 
herd  while  absent  from  the  islands.  My  inquiries  were  made  among 
the  Alaskan  Indi.aus,  half  breeds,  Aleuts,  and  fur-traders  along  the 
Northwest  Coast  and  Aleutian  Islands.  One  man,  who  had  been  a 
trapper  for  many  years  along  the  coast,  stated  to  me  thac  in  all  his 
experience  he  never  knew  of  but  one  case  where  seals  had  hauled  out 
on  the  Pacific  coast,  and  that  was  when  tour  or  five  landed  on  Queen 
Charlotte  Island.  This  is  the  only  case  I  ever  heard  of  seals  coming 
ashore  at  any  other  place  on  the  American  side  of  the  Pacific,  except 
the  Pribiiof  Islands.  These  seals  are  migratory,  leaving  the  islands 
in  the  early  winter  and  returning  again  in  the  spring.  The  Pribiiof 
herd  does  not  mingle  with  the  herd  located  on  the  Commander  Island. 
This  I  know  from  the  fact  that  the  herd  goes  eastward  after  entering 
the  Pacific  Ocean,  and  from  questioning  natives  and  half-breeds,  who 
have  resided  in  Kamschatka  as  employes  of  the  Russian  F'ur  Company, 
1  learned  that  the  Commander  herd  on  leaving  their  islanil  go  south- 
westward  into  the  Okhotsk  Sea  and  the  waters  to  the  simthward  of  it 
and  winter  there.  This  fact  was  further  verified  by  whalers  who  find 
tliera  there  in  the  early  spring. 

The  Alasiian  seals  make  their  home  on  the  Pribiiof  Islands  because 
they  need  for  the  period  they  spend  on  land  a  peculiarly  cool,  moist, 
and  cloudy  climate,  with  very  little  sunshine  or  heavy  lains.  This  pe- 
culiarity of  climate  is  only  to  be  found  on  the  Pribiiof  and  Commander 


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244 


ARGUMENT  OF  THE  UNITED  STATES. 


islanclR,  and  dnring  my  long  experience  in  the  North  Pacific  and  Ber- 
ing Sea  I  never  found  another  lo<!ality  which  possessed  these  condi- 
tions 80  favorable  to  seal  life.  Add  to  this  fact  tiie  isolated  condition 
of  the  seal  islands  and  we  can  readily  Bee  why  the  seal  selected  this 
home. 

Mr.  Alfred  Fraser  {ibid.,  pp.  654,  658)  Is  another  witness  to  whose 
testimony  exceptional  importance  shonld  be  attached.  He  was  of 
opinion  that  the  herdp,  from  which  skins  are  obtained  do  not  in  fact 
intermingle  with  each  other,  because  the  skins  classified  under  the 
head  of  Copper  catch  are  not  found  among  the  consignment  of  skins 
received  from  the  Alaska  catch,  and  vice  versa.  His  testimony  is 
quoted  at  some  length,  and  is  as  follows: 

That  he  is  a  subject  of  Her  Britannic  Majesty  and  is  52  years  of 
age  and  resides  in  the  city  of  Brooklyn,  in  the  State  of  New  York. 
That  he  is  a  member  of  the  firm  of  CM,  Lampson  &  Co.,  of  London, 
and  has  been  a  member  of  said  firm  for  about  thirteen  years;  prior  to 
that  time  he  was  in  the  employ  of  said  firm  and  took  an  active  part  in 
the  management  of  the  business  of  said  firm  in  London.  That  the 
business  of  C.  M.  Lampson  &  Co.  is  that  of  merchants,  engaged  princi- 
pally in  the  business  of  selling  skins  on  commission.  That  for  about 
twenty-four  years  the  firm  of  0.  M.  Lampson  &  Co.  have  sold  the  great 
majority  of  the  whole  number  of  sealskins  sold  in  all  the  markets  of 
the  world.  That  while  he  was  engaged  in  the  management  of  the 
business  of  said  firm  in  London,  he  had  personal  knowledge  of  the 
character  of  the  various  sealskins  sold  by  the  said  lirni,  from  his  per- 
sonal inspection  of  the  same  in  their  warehouse  and  from  the  physical 
hatidling  of  the  same  by  him.  That  many  hundred  thousands  of  the 
skins  sold  by  C.  M.  Lampson  &  Co.  have  physically  passed  through 
his  hands ;  and  that  since  his  residence  in  this  country  he  has,  as  a  mem- 
ber of  said  firm,  had  a  general  and  detailed  knowledge  of  the  character 
and  extent  of  the  business  of  said  firm,  although  since  his  residence  in 
the  city  of  New  York  he  has  not  physically  handled  the  skins  dis- 
posed of  by  his  firm. 

•  •••••• 

Deponent  is  further  of  the  opinion,  from  his  long  observation  and 
handling  of  the  skins  of  the  several  catches,  that  the  skins  of  the  Alaska 
and  Copper  catches  are  readily  distinguishable  from  each  other,  and 
that  the  herds  from  which  such  skins  are  obtained  do  not  in  fact  inter- 
mingle with  each  other  because  the  skins  classified  under  the  head  of 
Copper  catch  are  not  found  among  the  consignments  of  skins  received 
from  the  Alaska  catch,  and  vice  versa. 

Deponent  further  says  that  the  distinction  between  the  skins  of  the 
several  catches  is  so  marked  that  in  his  indgment  he  would,  for  instance, 
have  had  no  difficulty,  had  there  been  included  among  300,000  skins  in 
the  Alaska  catch  1,000  skins  of  tlie  Co]»per  catch,  in  distinguishing  the 
1,000  Copper  skins  and  separating  theni  from  the  9!>,(>00  Alaska  skins, 
or  that  any  other  person  with  equal  or  let-s  experience  in  the  handling 
of  skins  would  be  equally  able  to  distinguish  them.  And  in  the  same 
way  deponent  thinks,  from  his  own  personal  experience  in  handling 
skins,  that  he  would  have  no  di  Siculty  whatever  in  separating  the  skins 


81JMMAUY   OF   THE   EVIDENCE. 


245 


of  the  Northwest  catch  from  the  skins  of  the  Alaska  catch  by  reason  of 
the  fa<!t  that  they  are  the  skius  ahiiost  exchisivdy  of  females,  and  also 
that  the  fur  upon  the  bearing  female  seals  is  much  thinner  than  upon 
the  skin  of  the  male  seals,  the  skia  of  the  animal  while  preguaut  being 
extended  and  the  fur  extended  over  a  large  area. 

Charles  J.  Hague  {ibid.,  p.  207) :  Capt.  Uaguo  is  a  citizen  of  the  United 
States  and  a  master  mariner  by  occupation.  He  had  cruised  steadily 
in  Alaskan  waters  since  the  year  1878.  He  had  sailed  principally  about 
the  various  parts  of  the  Aleutian  Islands,  as  far  west  as  Attn,  to  which, 
island  he  had  made  about  twenty  trips  from  Unalaska,  principally  in 
the  spring  and  fall  of  the  year.  This  is  his  testimony  upon  the  point 
now  under  consideration : 

The  main  body  of  the  fur-seal  herd  bound  to  and  from  the  Pribilof 
Islands  move  through  the  passes  of  the  Fox  Islands,  Unimak  on  the 
east  and  the  West  Pass  of  Unmak  on  the  west,  being  the  limits  between 
which  they  enter  Behring  Sea  in  any  number.  I  do  not  know  through 
what  i)asses  the  difl'ei'ent  categories  move  or  the  times  of  their  move- 
ments. Earely  see  fur-seals  in  the  Pacific  between  San  Francisco  and 
the  immediate  vicinity  of  the  passes.  I  think  the  fur-i-eal  herds  of  the 
Commander  and  Pribilof  Islands  are  separate  bodies  of  the  fur-seal 
species,  whose  numbers  do  not  mingle  with  each  other.  In  the  latter 
part  of  September,  1807,  in  the  brig  Kentucky,  making  passage  between 
Petropaulowski  and  Kodiak,  I  observed  the  Commander  Islands  seal 
herd  on  its  way  from  the  rookeries.  They  moved  in  a  compact  mass  or 
school,  after  the  manner  of  herring,  and  were  making  a  westerly  course 
towards  the  Kurile  Islands.  The  seals  which  I  have  observed  on  their 
way  to  the  Pribilof  Islands  do  not  move  in  large  schools;  they  struggle 
along  a  few  at  a  time  in  a  sort  of  a  stream  and  are  often  seen  slee]>ing 
in  the  water  and  playing.  There  are  no  fur-seal  rookeries  in  the  Aleu- 
tian Islands  that  I  know  of;  in  fact,  I  have  never  heard  of  any  in  the 
region  besides  those  on  the  several  well-known  Seal  Islands  of  Bering 
Sea. 

H.  Harmsen  (iftid.,  p.  442):  Capt.  Harmsen  had  been  the  master  of 
a  ship  since  1880  and  engaged  in  the  business  of  hunting  seals  in  the 
Pacific  and  Bering  Sea  since  1877.  The  following  is  an  abstract  from 
his  testimony: 

Q.  In  your  opinion,  do  the  seals  on  the  Russian  side  intermingle  with 
those  on  the  Pacific  side  or  are  they  a  separate  herd? — A.  No,  sir; 
they  do  not  come  over  this  way.  They  are  not  a  dilfereiit  breed,  but 
they  keep  over  by  themselves;  at  least  I  don't  tliink  so.  They  follow 
their  own  stream  along  there.  There  is  so  much  water  there  where 
there  are  seals,  and  so  much  where  there  are  not.  They  are  by  them- 
selves. 

Samuel  Kahoorof  (ifeid.,  p.  214) :  Kahoorof  is  a  native  of  Attn  i' island,  62 
years  of  age,  and  a.  hunter  of  the  sea  otter  and  blue  fox.    He  I  ad  lived 


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246 


ARGUMENT   OF   THE    UNITED    STATES. 


1 

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in  the  same  place  all  his  life.    We  extract  thjit  part  of  his  testimony 
Which  bears  upon  the  question  now  under  immediate  i-onsideration: 

Have  seen  only  tliree  fur-seals  in  this  region  in  tweniy  years.  Saw 
them  in  May,  181>0,  traveling  along  the  nort.li  side  of  Attn  iHland,  about 
5,miles  offshore,  and  making  a  northwesterly  rourse.  Tiiey  \ver«*  young 
males,  I  think.  Fur-seals  do  not  regularly  visit  these  ishiiids  now,  but 
about  twenty- tive  or  thirty  years  ago  I  used  to  see  small  .••  v'sids  of  large 
seals  during  the  month  of  June  feeding  and  sleei)ing  about  tlie  kelp 
patches  off  the  eastern  shores  of  Attu  and  Agattu  Islands.  They  eame 
from  the  stmthward  and  traveled  in  a  northwesterly  direction.  Never 
saw  any  fur-siuils  east  of  the  Bemichi  Islands  and  do  not  think  that 
those  of  the  Commander  Islands  herd  go  farther  to  the  eastward  than 
that.  They  decreased  in  numbers  gradually,  and  during  the  last  twenty 
years  I  have  oidy  seen  the  three  above  mentioned.  Have  never  seen  a 
nursing  or  mother  cow  or  black  or  gray  pup  in  this  region,  and  do  not 
think  they  ever  visit  it. 

John  Malowansky  {ibid.,  p.  198) :  Mr.Malowansky  is  ii  resident  of  San 
Francisco,  an  American  (titizen,  but  a  Russian  by  birth.  le  was,  at  the 
time  of  testifyiu'^,  a  merchant  by  profession  and  an  agent  for  the  llus- 
sian  Sealskin  Coi  ipany.  He  resided  oq  the  Commander  Islands  in  18C9, 
1870,  and  1871,  and  was  then  engaged  in  the  sealing  business.  He  was 
there  again  in  1887,  as  agent  of  the  company.  He  formerly  lived  in 
KaTiitchatka  and  frequently  visited  the  Commander  Islands  between 
1871  and  1887.  He  was  an  expert  in  all  matters  relating  to  the  fur-seal 
trade,  especially  on  the  Russian  side  of  the  Bering  Sea.  The  follow- 
ing is  an  extract  from  his  testimony: 

The  seals  of  the  Commander  Islands  are  of  a  different  variety  from 
those  of  the  rribilofs.  The  fur  is  not  so  thick  and  bright  and  is  of  a 
somewhat  inferior  quality.  They  form  a  distinct  herd  from  that  of  St. 
Paul  and  St.  George,  and  in  my  opinion  the  two  do  not  intermingle. 

1  was  present  as  interpreter  when  the  Knglish  Conunissioners  were 
taking  testimony  on  Beiing  Island.  They  examined  among  others, 
when  1  was  ])resent,  .Fefim  Snigeroft",  Chief  of  Bering  Island,  he  being 
the  person  selected  by  them  there  from  which  to  procure  the  testimony 
relating  to  the  habits  and  killing  of  seals.  This  Snigeroff  testified 
that  he  had  lived  on  the  Pribilof  Islands  for  many  years  and  knew  the 
distinctive  characteristics  of  both  herds  (Commander  and  Pribilof)  and 
their  habits  and  that  he  removed  from  thence  to  Bering  island.  He 
pointed  out  that  the  two  herds  have  several  different  characteristics  and 
stated  that  in  his  belief  they  do  not  intermingle. 

Filaret  Prokopief  (ifttd.,  p.  21G) :  Prokopief  is  a  native  of  Attn  Island,  23 
yejirs  of  age,  and  the  agent  and  storekeeper  at  that  place  of  the  Alaska 
Commercial  Company.  His  occui)ation  was  that  of  hunter  for  sea-otter 
and  fox,  but  never  for  fur-seal.  This  occupation  he  pursued  until  the 
time  when  he  was  made  agent.  His  hunting  ground  was  Attu,  Agattu, 
and  the  Semichi  Islands.    This  is  his  testimony: 


SUMMARY   OP   THE    RVIDENCE. 


247 


1  never  saw  but  one  furaeal  in  the  water.  It  was  a  young  male 
which  was  kiUed  in  this  bay  in  September,  1884.  I  do  not  know  of 
any  fur-seal  rot»k©ry  or  other  phices  where  fur-seals  liaul  out  on  the 
land  to  breed  or  rest  in  the  Aleutian  Islands,  nor  wluue  the  old  bull 
for-neals  spend  the  winter.  I  do  not  know  at  wliat  time  or  by  what 
routes  the  seal  herds  move  to  and  from  the  Bering  Sea;  have  heard 
old  hunters  say  the  Commander  Islands  herd  used  to  pass  tilosu  to  the 
western  shores  of  these  islands  on  their  way  north. 

Eliah  Prokopief  {ibid.,  p.  215)  is  a  native  of  Amehitka  Island  of  the 
Aleutian  chain;  52  years  of  age;  had  been  a  hunter  all  Ills  life,  but  had 
never  hunted  or  killed  a  fur-seal.  His  hunting  ground  was  about 
Attn,  Agattu,  and  the  Semichi  Islands.    His  testimony  is  as  follows: 

Fur-seals  do  not  regularly  frequent  these  regions,  and  T  't"^  e  seen 
none  but  a  few  seattenng  ones  in  twenty  years.  Thirty  years  ago, 
when  the  Russians  controlled  these  islands,  I  used  to  see  a  few  medium- 
sized  fur-seals,  one  or  two  at  a  time,- in  the  summer,  generally  in  June, 
traveling  to  the  northwest,  and  bound,  I  think,  for  the  Commander 
Islands.  The  farthest  east  I  have  ever  seen  them  was  about  .'U)  miles 
east  of  the  Semichi  Islands;  do  notthink  those  going  to  the  Commander 
Islands  ever  go  farther  east  than  that.  Those  most  seen  in  former 
times  were  generally  feeding  and  sleeping  about  the  kelj)  jtatches  be- 
tween Attn  and  Agattu,  and  the  Semichi  Islands,  where  the  mackerel 
abounds.  They  decreased  in  numbers  constantly,  and  now  are  only 
seen  on  very  rare  occasions.  Have  seen  but  half  a  dozen  in  the  last 
twenty  years;  they  were  large  seals — bulls,  I  judged  from  their  size — 
traveling  to  the  northwest,  about  30  miles  east  of  the  Semichi  Islands. 
This  was  in  May,  1888. 

Have  never  seen  any  pups,  black  or  gray,  or  nursing  female  seals  in 
this  region,  and  do  not  think  they  ever  visit  it.  Do  not  know  of  any 
rookeries  in  the  Aleutian  Islands,  nor  any  places  where  fur  seals  haul 
out  l-egularly  on  the  land  or  kelp  to  breed  or  rest  except  the  Russian 
and  American  seal  islands  of  Bering  Sea.  Do  not  know  where  the 
old  bull  fur-seals  spend  the  winter,  nor  what  route  the  fur-seal  herds 
take  to  and  from  the  Commander  and  Pribilof  islands,  nor  at  what 
times  the  herds  pass  to  and  from.  Am  quite  sure  the  herds  do  not 
come  near  enough  together  to  mingle  in  these  regions.  Have  never 
known  of  fur-seals  being  seen  between  Amehitka  and  a  i)oint  30  miles 
east  of  the  Semichi  Islands.  Do  not  think  there  are  now  as  many 
fur-seals  as  there  were  thirty  years  ago,  but  do  not  know  the  cause  of 
the  decrease.  Sealing  schooners  do  not  regularly  visit  these  islands. 
Last  August  (1891)  three  of  them  eanie  in  here  to  get  water,  but  only 
stayed  a  few  hours  each ;  they  had  been  to  the  Commander  Islands 
and  were  going  south. 

Gustave  Kiebaum  {ihid.,  p.  202) :  The  testimony  of  Mr.  Niebaum  has 
been  cited  above  and  his  qualifications  given.  Upon  the  subject  of  the 
alleged  or  possible  commingling  of  the  different  herds,  he  says  (ibid., 
p.  204): 

T  am  satisfied  that  the  seal  herds  respectively  np<m  the  Pribilof 
group,  the  Commander  Islands  and  Robben  Bank,  have  each  their 


i  I 


I    I 


(,  . 


I'^'i 


^'Mf' 


t 


'.:1l 


■iii 


248 


ARGUMENT    OF   THE    UNITED    STATES. 


own  distinctive  feeding  grounds  and  peculiar  jn'ounds  of  migration. 
No  doubt  tliey  are  of  the  same  species,  but  there  is  a  marked  ditter- 
ence  in  the  fur  of  the  slvius  from  the  respective  i)la.ces,  which  can  be 
distinguished  by  experts. 

0.  A.  Williams  {ibid.,  p.  535) :  IVIr,  Williams  is  a  citizen  of  the  United 
States,  a  resident  of  the  city  of  New  London,  in  the  State  of  Connec- 
ticut, and  was  at  the  time  of  testifying  03  years  of  age.  He  had  been 
largely  engaged  for  a  period  of  upwards  of  forty  years  in  the  whaling 
and  sealing  business,  in  Avhich  he  had  employed  upward  of  twenty-live 
vessels.    He  says  that  there  ia  no  intermingling  of  the  herds. 

The  testimony  of  Alexander  INIcLean  {ibid.,  p.  436)  is  to  the  same  effect. 
Mr.  McLean  is  a  master  mariner  and  had  been  engaged  for  ten  years, 
at  the  time  of  making  his  deposition,  in  the  business  of  hunting  seals 
in  the  Pacific  or  Bering  Sea. 

To  the  like  effect  is  the  testimony  of  Daniel  McLean  {ibid.,  p.  443). 
He,  too,  is  a  master  mariner,  and  is  of  opinion  that  the  llusLian  and 
Alaskan  herds  are  diffeieut  herds  of  sealb  altogether.  His  testimony 
is  as  follows: 

Q.  In  your  opinion,  do  the  seals  on  the  Russian  side  intermingle 
with  those  ou  the  Pacific  side?  A.  No,  sii'j  1  do  not  think  so.  They 
are  oitterent  seals  in  my  opinion. 

It  is  only  .just  to  add  that  the  British  Commissioners  virtually  make 
the  admissitm  that  these  herds  are  separate  and  distinct,  although  the 
inference  may  be  drawn,  from  some  of  their  statements,  leading  to  a 
contrary  conclusion,  when  the  practical  question  arises  in  connection 
with  an  appreciable  difference  in  the  value  of  skins. 

Thus,  for  instance,  the  suggestion  is  made  of  a  probability  in  the 
future,  m  a  course  of  years,  that  a  continued  "harassing"  of  one  group 
might  result  in  a  corresponding  gradual  accession  to  the  other,  by 
which  it  is  no  doubt  intended  to  convey  the  idea  tiiat  unless  the  kill- 
ing on  the  Pribilof  Islands  is  discontinued  the  seals  will  migrate  and 
adopt  a  Russian  domicile  (Sec.  453). 

But  the  same  paragraph  admits  that  "the  fur-seals  of  the  two  sides 
of  the  North  Pacific  belong  in  the  main  to  practically  distinct  migra- 
tion tracts."  They  idd  that  it  ia  not  believe<l  that  any  voluntary  or 
systematic  movement  of  fur-seals  takes  place  from  one  group  of  breed- 
ing islands  to  the  other  (Set;.  453).  See  also  section  108  of  British  Com- 
missioner'^ rei)ort,  that  "wluk^  tlierci  is  every  reamn  to  believe  that  the 
•eala  buuouu)  more  or  less  uomuiingled  in  Behring  Sea  during  the  sum- 


SUMMARY   OP   THE   EVIDENCE. 


249 


mer  fa  purely  CTatuitous  assunn)tiouJ,  the  mig^ration  routes  of  the  two 
sides  of  the  J>.ortli  Pacidc  are  essentially  distiaut."  (tSee  also  i^eos. 
170, 198,  210,  liilO.) 

Without  any  evidence,  then,  on  the  side  of  the  United  States,  it 
might  be  asserted,  on  the  Beport  of  the  British  Commissioners  alone, 
tiiat  any  interraiiigliug'  of  the  two  herds  is  abnormal  and  exceptional, 
alT.uougii  these  gentlemen  are  inclined  to  think  that  in  the  remote 
future  this  separation  may  disappear. 

(C)  THE  ALASKAN  FUR-SEALS  HAVE  BUT  ONE  HOME,  NAMELY,  THE 
PBIBILOF  ISLANDS.  THEY  NEVER  LEAVE  THIS  HOME  WITHOUT 
THE  ANIMUM  REVERTLNDI,  AND  ABB  NEVER  SEEN  ASHORE  EXCEPT 
ON  THOSE  ISLANDS. 

The  testimony  aa  to  this  fact  is  uncontradicted  except  by  the  curious 
and  utterly  unsupported  statement  of  the  British  Commissioners  that 
the  animals  actually  enjoy  and  occupy  two  homes;  that  is,  they  have 
a  winter  domicile,  which  is  not  given,  except  by  a  vague  and  general 
designation  (British  Commissioners'  Eeport,  Sec.  27),  and  a  summer 
place  of  resort,  which  is  the  Pribilof  Islands.  There  is  no  pretense  that 
they  ever  land  elsewhere.  The  force  of  this  original  suggestion  of  a 
double  residence  would  be  much  increased  if  the  slightest  indication 
were  given  to  enable  us  to  test  the  accuracy  and  to  aid  the  Commis- 
sioners in  satisfying  the  world  of  scientists  that  a  grave  error  has 
heretofore  been  committed  and  continuously  accepted.  But  as  we  are 
endeavoring  to  treat  the  assertion  as  seriously  and  respectfully  as 
possible,  we  submit  that  in  the  face  of  absolute  and  uncontradicted 
proof,  corroborated  by  general  scientific  experience,  we  are  not  bound 
to  devote  any  considerable  space  to  the  demonstration  that  the  fact 
must  be  taken  to  be  as  we  have  stated  it. 

In  fairness  to  the  Commissioners  for  Great  Britain,  it  may  be  proper 
to  call  attention  to  their  own  language,  noting,  however,  the  singular 
process  by  which  they  make  the  migration  of  the  seals  commence  at  an 
uncertain  point  in  the  Padjio  to  reach  their  well-established  home  and 
place  of  nativity  in  the  north. 

The  absurdity  chargeable  upon  the  British  Commissioners  of  thus 
ber"".ning  at  an  uncertain  point  to  reach  a  certain  one  is  shewn  by 
Capt.  Scammon,  who  has  been  an  officer  in  the  United  States  Keve- 
nue-Marine  Service  since  1863.  Mr.  Scannnon  is  also  the  antlior  of 
the  work  entitled  "The  Maiine  Mammals  of  the  Northwestern  Coast 


'  ■  ii.  'u 


'  V  1>, 


!;.;' 


m 

f}^- 


250 


■11 1  III  I  III    OF  THE   UNITED   STATES. 


of  North  America."  published  by  J.  H.  Oarmany  &  Co.,  San  Francisco, 
1874.     He  says: 

The  certainty  tnart-the  seals  canjjht  in  the  North  Pacific  are  in  fact 
a  portion  of  the  IMMlof  herd,  and  that  all  are  born,  and  reared  for  the 
first  i'ew  aiontbH.  ii-p»)n  the  islands  of  that  group,  naturally  leads  the 
observer  to  refjaarn  riieni  as  quite  domesticated  and  belonginjj  upon 
their  island  honi»-.  The  more  orderly  tcaif  to  dencribe  them,  there/ore, 
would  be  to  ciinii'--  f  ;•  with  their  birth  upon  the  island  and  tiie beginning 
of  their  migratiour^.  i.ither  than  at  the  end  ot  some  one  of  their  annual 
rounds  away  froiu  moine. 

We  now  quote  the  language  of  the  Report  of  the  British  Commis- 
sioners : 

Tbe  fur-seal  of  tl>e  North  Pacific  Ocean  is  an  animal  in  its  nature 
esHentinlh/  peUnfic.  which,  during  the  greater  part  of  each  year,  has  no 
occasion  to  seek  tlie  land  and  very  rarely  does  so.  For  some  portion  of 
the  year,  hmcener,  it  H«iMra/Z>/ resorts  to  certain  littoral  breeding  places, 
where  theyoumj  are  Irrought  forth  and  sueldcd  on  land.  It  is  gregarious 
in  habit,  and,  thongh  seldom  found  in  defined  schools  or  compact 
bodies  at  sea,  congregates  in  large  numbers  at  the  breeding  places. 
(Sec.  26.) 

Then  they  describe  the  migrations  and  continue: 

The  fnr-seal  of  the  North  Pa^'ific  may  thus  be  said,  in  each  case,  to 
havetvvo  habitats  or  homes  between  which  it  migrates,  both  equally 
necesaar-  to  its  existence,  under  preseiit  circumstances,  the  one  fre- 
quented ja  summer,  the  other  during  the  winter. 

TJnleftH  rne  vast  expanse  of  sea  between  the  Aleutian  Islands  and  Cali- 
f  )mia  bhiukt  be  considered  a  winter  habitat,  it  is  difiicult  to  see  upon  what 
fouiKtanwon  tnese  gentlemen  have  felt  justified  in  making  the  statement 
of  a  (louiblp  home.  The  object  of  such  an  argumentative  assertion  is  too 
piain  (»>»  require  consideration,  at  least  in  connection  with  this  point. 

The  -mith  upon  t)iis  question  of  habitat  or  home  is  as  stated  by  the 
American  ( lommieiiiiouera  in  their  report.  They  use  the  following 
languaiiitr. 

TTie  TH-ibilof  Islands  are  the  home  of  the  Alaskan  fur-seal  fCallorhi- 
nus  nrwinns).  They  are  peculiarly  adapted,  by  reason  ot  their  isolation 
and  ciiniiitc.  for  seal  life,  and  bcciuiseot  this  ])ecnliar  adiijtrability  w«'re 
umiountefdly  chosen  by  the  seals  for  their  habitation.  The  climatic 
condiTio!  -  iue  especially  favorable.  The  s<>al,  while  on  land,  needs  a 
cool,  moisi,.  and  chmdy  climate,  sunshine  and  warmth  i)roducing  a  very 
injuriouK  efiect  up<m  the  animals.  These  requisite  phenomena  are 
found  at  the  Pribilof  Islands,  and  nowhere  else  in  Bering  Sea  or  the 
Nortti  Paritic  save  at  the  Commander  (Komaudorski)  islands.  (Case 
of  the  (JniCed  States,  p.  89.) 


SUMMARY   OF   THE   EVIDENCE. 


251 


What  might  be  the  result  if  the  seals  were  prevented  from  landing 
to  drop  their  young  at  the  Pribilof  Islands  is  wholly  a  matter  of  con- 
jecture. It  would  seem  from  the  testimony  in  the  Case  quite  certain 
that  the  pregnant  females  would  lose  their  young  if  they  were  on  the 
l)oint  of  delivery  when  reaching  the  islands,  and  if  driven  off  by  man, 
or  by  accident;  they  certainly  would  be  exjjosed  to  great  danger  while 
looking  for  another  home,  even  assuming  tJiis  exercise  of  sound  judg- 
ment in  extremin  to  be  probable.  Such  difficulties  do  not,  however, 
trouble  the  Commissioners,  who  are  satisfied  that  if  they  were  to  be  de- 
barred from  reaching  the  islands  now  chiefly  resorted  to  for  breeding 
purposes,  they  would  speedily  seek  out  other  places  upon  which  to  give 
birth  to  their  young.    (Report  of  British  Commissioners,  Sec.  28.) 

This  is  based  upon  "  experience  recorded  elsewhere."^  We  fail  to  find 
any  such  recorded  experience  which  would  justify  so  wild  an  assertion. 
On  the  contrary,  it  appears  that  when  the  lieavy  females  have  been 
debarred  by  ice  from  the  land  they  were  delivered  in  the  water  and 
the  young  perished. 

The  experience  of  the  South  Sea  seals  is  directly  opposed  to  this 
theory.  Exclusion  from  their  usual  haunts  meant  destruction.  Why 
did  they  not  when  shut  off'  from  the  resort  of  their  choice  seek  out  a 
new  home,  with  the  proper  conditions  of  climate,  soil,  and  food,  to  tiiko 
the  place  of  the  old  home  from  which  man  had  driven  them  f  We  know 
of  no  reasonable  theory  upon  which  it  may  be  plausibly  argued  that 
the  Pribilof  seals  would,  under  the  like  circumstances,  act  differently. 

III.— Movements  of  the  Seals  After  the  Birth  of  the  Young. 

It  being  conceded  that  the  fur-seals  known  as  the  Alaska  seals  breed, 
"at  least  for  the  most  part"  (Report  of  British  Connnissioners,  Sec. 
27),  on  the  Pribilof  Islands  in  summer,  it  becomes  important  to  know 
wliat  their  movements  may  be  after  the  birth  of  the  young.  There  is 
no  very  material  difference  between  the  statements  of  the  Commis- 
sioners of  the  respective  governments  on  this  point. 

Tlie  breeding  males  begin  to  arrive  on  the  Pribilof  Islands  at  vary- 
ing dates  in  May  and  remain  continuously  ashore  for  about  three 
months,  after  which  they  are  freed  from  all  duties  oji  the  breeding 
rookeries  and  only  occasionally  return  to  the  shores.  Tlx;  breeding 
females  arrive,  for  the  most  part,  nearly  a  month  later,  bearing  tlnur 
young  immediately  on  landing,  and  remain  ashore,  jealously  guarded 
by  the  males,  for  several  week.s,  after  which  they  take  every  oppor- 
tunity to  play  in  the  water  close  along  the  beaches,  and  about  a  month 


!»■  Ii 


''•;('•!';'■ 


252 


ARGUMENT   OP   THE    UNITED   STATES. 


^!  1 


later  thoy  also  begin  to  leave  the  islands  in  search  of  food  and  migrate 
to  their  winter  habitat.  The  young  males  and  the  you'^g  females  come 
ashore  later  than  the  breeding  iieals,  and  at  more  irregular  dates,  and 
haril  out  by  themselves.  Lastly,  the  pups  of  the  year  born  in  June 
and  .July  commence  to  i>od,  or  herd  together,  away  from  their  mothers, 
towards  the  middle  or  end  of  August,  and  after  that  frequent  the 
beaches  in  great  numbers  and  bathe  and  swim  in  the  surf.  They 
remain  on  the  islands  until  October,  and  even  November,  being  among 

the  last  to  leave  (Report  of  the  British  Commissiorers,  Sec.  30). 

TheUnited  States Oommissionors  make  the  following  statement,  which 
is  corroborated  by  aburidant  evidence.  The  bulls  are  the  male  seals 
from  five  or  six  to  twenty  years  of  age,  and  weigh  from /our  hundred  to 
seven  hundred  pounds.  Ihey  arrive  on  the  breeding  ground  in  the  lat- 
tt3i  part  of  April  or  the  first  few  days  of  May,  but  the  time  is,  *o  a  cer- 
tain extent,  dependent  upon  the  going  out  of  the  ice  about  the  island. 
(Case  of  the  United  States,  p.  108.)  Toward  the  latter  part  of  May  or 
first  of  June,  the  cows  begin  to  appear  in  the  waters  adjacent  to  the 
island  and  immediately  land  upon  the  breeding  ground.  The  great 
majority,  however,  do  not  haul  up  until  the  latter  part  of  June,  and 
the  arrivals  continue  until  the  middle  of  July. 

Some  of  the  bulls  at  this  time  (about  the  first  of  August)  begin  to 
leave  the  islands,  and  continue  going  until  the  early  part  of  October. 
[Case  of  United  States,  p.  112,  citing  witnesses  as  to  this  point,] 

The  bachelor  seals,  or  nonbreeding  males,  ranging  in  age  from  1 
to  5  or  6  years,  begin  to  arrive  in  the  vicinity  of  the  islands  soon 
after  the  bulls  have  taken  up  their  positions  upon  the  rookeries,  but 
the  greater  number  appear  toward  the  latter  part  of  May.  They  en- 
deavor to  land  upon  the  breeding  grounds,  but  are  driven  off  by  the 
bulls  and  compelled  to  seek  the  hauling  grounds. 

As  to  the  departure  of  the  seals  from  their  home  on  the  Pribllof 
Islands,  there  does  not  seem  to  be  any  question  that  the  statement  in 
the  United  States  Commissioners'  Eeport  is  correct. 

The  length  of  time  that  a  pup  is  dependent  upon  its  mother,  as  here- 
tofore stated,  compels  h.er  to  remain  upon  the  island  until  the  middle 
of  November,  when  the  cold  and  stormy  weather  induces  her  to  start, 
her  pup  being  the  a  able  to  support  itself  (pp.  119, 120). 

The  bachelor  seals  generally  leave  at  the  same  time  as  the  cows  and 
pups  leave  the  island,  though  a  few  bachelors  alwayfi  are  found  after 
that  period  (p.  122  of  the  case  of  United  States). 

The  Alaskan  herd  has  had  but  one  breeding  place,  which  is  the 
Pribllof  Islands.    While  there  is  no  express  contradiction  us  to  this 


SUMMARY    OF  THE   EVIDENCE. 


253 


In  the  Report  of  the  British  Commissioners,  it  may  be  interesting  to 
cite  some  of  the  proof  in  support  of  this  assertion. 

(a)  The  islands  are  in  every  particular  adapted  by  climate  and  con- 
ditions to  the  purpose.  While  it  is  suggested,  as  we  have  seen  above, 
by  the  British  Commissioners,  that  the  seals  would  find  no  difficulty  in 
procuring  another  suitable  place  for  breeding  and  for  passing  the  sum- 
mer montiis,  this  is  manifestly  a  conjecture  and  need  not  be  dwelt  upon. 

(&)  There  is  no  evidence  that  the  animal  has  ever  resorted  to  other 
places,  but  all  the  evidence  before  this  High  Tribunal  of  Arbitration 
leads  to  the  inference  above  stated. 

The  language  of  the  Case  on  the  part  of  the  United  States  is  as  fol- 
lows (p.  89) : 

The  climatic  conditions  are  especially  favorable.  The  seal,  while  on 
land,  needs  a  cool,  moist,  and  cloudy  climate,  sunshine  and  warmth 
producing  a  very  injurious  effect  ujion  the  animals.  These  requisite 
phenomena  are  found  at  the  Pribilof  Islands  and  nowhere  else  in  Ber- 
ing Sea  or  the  North  Pacific,  save  at  the  Commander  ^Komandorski) 
Islands. 

This  is  abundantly  sustained  by  the  proof.  See  upon  this  point 
the  testimony  of  Charles  Bryant  (Ajjpendix  to  Case  of  the  United 
States,  ^'ol.  II,  p.  4),  Capt.  Bryant  having  been  long  engaged  in  whaling 
and  having  acted  as  Special  Treasury  Agent  at  the  Pribilof  Islands. 
Also  Samuel  Falconer  {ibid.,  p.  1C4).  Mr.  Falconer  had  had  long 
experience  as  Treasury  Agent  on  the  islands,  and  otherwise,  and  is  a 
fully  competent  witness  upon  this  point.  He  assigns  the  reason  for  the 
selection  of  this  breeding  locality  by  the  seals  in  the  following  lan- 
guage: 

The  reason  the  seals  have  chosen  these  islands  for  their  home  is  be- 
cause the  Pribih)f  group  lies  in  a  belt  of  fog,  occasioned  by  the  waters 
ot  the  Arctic  Ocean  coming  down  from  the  north  and  the  warmer  waters 
of  the  Pacific  flowing  north  and  meeting  at  about  this  point  in  Bering 
Sea.  It  is  necessary  that  tlie  seals  should  have  a  misty  or  foggy 
atmospheie  of  this  kind  while  on  land,  as  sunshine  has  a  very  injurious 
effect  upon  them.  Then,  too,  the  islands  are  so  isobited  that  the  seal, 
which  is  a  very  timid  animal,  remains  here  undisturbed,  as  every  pre- 
caution is  taken  not  to  disturb  the  animals  while  they  ai-e  on  the  rook- 
eries. The  mean  temperature  of  the  ishuids  is  during  the  winter  abimt 
26°  P.,  and  in  summer  about  43°.  I  know  of  no  otiier  locality  wliich 
possesses  these  peculiarities  of  moisture  and  temperature.  Tlie  grounds 
occupied  by  tlie  seals  for  breeding  purposes  are  along  the  coast,  ex- 
tending from  high-water  mark  hack  to  the  chfis,  whicli  abound  on  Saint 
George  Island,  Tlie  young  malos  or  bachelors,  not  t)eing  allowed  to 
land  on  tliese  breeding  places,  lie  back  of  and  around  these  breeding 
grounds  on  areas  designated  hauling  grounds. 


I: 


!^''l-     ,1. 


254 


AHGUMENT  OF  THE  UNITED  STATES. 


Captain  Morgau  says  {ibid.,  p.  61) : 

I  believe  that  the  cause  the  seals  choose  these  islands  for  their  home 
is  because  of  the  isolation  of  these  Pribilof  Islands  and  because  the 
climatic  cond  tion  of  these  Pribilof  Islands  is  peculiarly  favorably  to 
seal  life.  During  the  time  the  seals  are  upon  land  the  weather  is  damp 
and  cool,  the  islands  being  almost  <!outiuuijlly  enveloped  in  fogs,  the 
average  temperature  being  about  41°  F.  during  the  summer. 

See,  too,  Daniel  Webster,  local  agent  for  the  North  American  Com- 
mercial Company,  and  stationed  on  St.  George  Island,  who  uses  the 
followiiig  language  (ibid.,  p.  180) : 

These  islands  are  isolated  and  seem  to  possess  the  necessary  climatic 
conditions  to  make  them  the  favorite  breeding  grounds  of  the  Alaskan 
fur-seals,  and  it  is  here  they  congregate  during  the  summer  months  of 
each  year  to  bring  forth  and  rear  their  young. 

Mr.  Eedpath,  a  resident  of  St.  Paul  Island,  Alaska.  He  had  resided 
on  the  seal  islands  of  St.  Paul  and  St.  George  since  1875,  that  is  to 
say,  at  the  time  of  giving  his  deposition,  some  seventeen  years.  He 
testified  as  follows  upon  this  point  (ibid.,  p.  148) : 

The  Alaskan  fur  seal  is  a  native  of  the  Pribilof  Islands,  and,  unless 
prevented,  will  return  to  those  islands  every  year  with  the  regularity 
of  the  seasons.  All  the  peculiarities  of  nature  that  surround  the  Pribi- 
lof group  of  islands,  such  as  low  and  even  temperature,  fog,  mist,  and 
perpetual  clouded  sky,  seem  to  indicate  their  fitness  and  adaptability 
as  a  home  fur  the  Alaskan  fur-seal;  and  with  an  instinct  bordering  on 
reason,  they  have  selected  these  lonely  and  barren  islands  as  the  choicest 
spots  of  earth  upon  which  to  assemble  and  dwell  together  duiing  their 
six  months  stay  on  land;  and  annually  they  journey  across  thousands 
of 'niles  of  ocean,  and  i)ass  1  undieds  of  islands,  without  pause  or  rest, 
until  they  come  to  the  place  of  t licit-  birth.  And  it  is  a  well-established 
fact  that  upon  no  other  land  in  the  world  do  the  Alaskan  fur-seal  haul 
out  of  water. 


<£i 


IV. — The  Entike  Office  of  Reproduction  and  Eeabing  op 
Young  is  and  must  be  Peefoemed  on  Land. 

"The  act  of  coition  takes  place  upon  land"  (Case  of  the  United 
States,  p.  110).  The  correctness  of  this  assertion  is  settled  beyond 
controversy  by  the  overwhelming  proof  furnished  by  the  United  States 
Commissioners.  But  had  they  produced  no  evidence  whatever,  it  is 
clear  that  tlie  data  furnished  by  the  British  Commissioners  themselves 
are  iusuHicient  to  cast  reasonable  doubt  upon  the  proi)Osition. 

(a)  The  British  Couunissiouers,  in  their  report,  begin  with  the  broad 
(and  incorrect)  statement  that  the  fur-seal  is  an  animal  in  its  nature 


of 


SUMMARY    OF   THE    EVIDENCE. 


255 


''essentially  pelagic,"  which  "for  some  portion  of  the  year,  however, 
naturally  resorts  to  certain  littoral  breeding  places,  where  the  young  are 
brought  forth  and  suckled  on  land"  (Sec.  261).  Why  it  is  and  how  it 
happtM)s  that  an  "essentially  pelagic"  animal  should  nfl<wra//y resort  to 
land  for  the  most  important  function  of  its  life  does  not  appear,  and  yet 
the  exceptional  singularity  of  the  circumstance  might  have  made  ex- 
planation reasonable.  It  is  enough  for  the  present  i)urpose  to  give,  in 
a  word,  the  explanation  of  this  practice  of  resorting  to  laud.  It  may 
be  found  in  the  universally  conceded  fact,  that  when  the  young  happen  to 
be  born  at  sea  they  perish.  Ability  to  swim  does  not  come  spoutaiiCously 
or  naturally  to  this  "essentially  pelagic"  animal.  It  is  part  of  its  edu- 
cation, and  is  not  always  acquired  without  difficulty.  The  race  would 
be  at  once  extinguished,  by  failure  of  living  offspring,  if  it  were  confined 
to  its  own  element. 

Passing  this  anomaly  for  the  present  and  again  seeking  information 
from  the  British  Commissioners'  Report,  we  learn  that  the  breeding 
males  begin  to  arrive  on  the  Pribilof  Islands  at  varying  dates  in  May 
and  remain  continuously  on  shore /or  about  three  months,  after  which  they 
arj  freed  from  all  duties  on  the  breeding  rookeries.  •  *  •  The  breed- 
ing females  arrive  for  the  most  pait  nearly  a  month  lat^r,  bearing  their 
young  immediately  on  hmding  and  remaining  ashore,  jealously  gu<trded 
by  the  males  for  several  iceelcs  (Eeport  of  British  Commissioners,  Sec.  30). 

It  is  plain  that  the  impregnation  of  the  female  takes  place  during 
these  months  or  weeks.  The  "jealous"  care  of  the  breeding  males, 
their  sojourn  on  the  land  "  until  they  are  freed  from  all  duties  on  tht 
shore,'"  their  patient  waiting  for  the  females;  all  these  facts  show 
that  there  is  a  regular  season  of  coition,  which  extends  as  they  admit 
from  May  until  July  or  August  (see  Eeport  of  British  Commissioners, 
See,  300),  and  that  the  act  takes  place  on  the  land. 

If  this  assertion  needs  further  demonstration,  it  may  be  readily 
hirnished. 

Assuming,  as  we  must,  and  as  the  British  Commissioners  themselves 
declare,  that  it  is  natural  for  the  seal  to  resort  to  land  for  the  purpose 
of  bringing  forth  and  suckling  its  young,  it  being,  moreover,  uncon- 
tradicted that  there  is  but  one  breeding  place  for  this  herd  of  seals, 
viz.,  the  Pribilof  Islands,  it  is  indisputable  that  the  period  of  coition 
and  impregnation  must  so  correspond  with  the  period  of  return  to  the 
islands  as  to  enable  the  mother  to  time  the  period  of  delivery  with  that 
of  reaching  land.    Nature  is  a  wise  and  careful  monitor  in  her  dealings 


|i  .►if 


I, 


ii 


'H!1 


'       'tf 


Pf^ 


(         r 
I 
I  ( 


> 

i 

til 


I, 


'II 


Hi.! 


'  Hi 


256 


ARGUMENT   OF   THE   UNITED   STATES. 


t  I  i 


with  these  and  other  animals  and  they  heed  her  teachings.  Nothing 
is  left  to  chance  in  the  all-important  matter  of  perpetuating  the  species. 
Coition  and  impregnation  at  sea  and  at  irregular  times  would  8im[)ly 
mean  irregularity  of  birth  and  consequent  destruction.  If  the  females 
were  impregnated  at  any  other  season  their  young  would  be  bom  at 
sea,  and,  notwithstanding  their  "essentially  pelagic  nature,"  would 
inevitably  perish. 

This  is  further  demonstrated  by  inexorable  figures.  The  breeding 
females,  say  the  British  Commissioners,  arrive  at  the  islands  nearly  a 
month  later  than  the  males — that  is  to  say,  in  June — and  "inmiediately" 
drop  their  young.  Given  the  date  of  birth  (some  time  in  June  or  July) 
and  the  period  of  gestation  (about  fifty  weeks)  (Case  of  the  United  States, 
p.  113),  it  is  not  difiicult  to  fix  the  season  of  fertilization,  hut  it  is  impossi. 
ble  to  fix  it  at  any  other  time  than  theperiod  of  the  breeding  mothers'  stay  at 
the  islands.  Such  evidence  as  this  outweighs  the  most  ingenious  and 
finely  drawn  conjecture.  Even  were  it  possible  to  show  occasional 
acts  of  coition  in  the  water  after  the  females  have  been  "  released  by 
their  jealous  male  companions"  on  land,  the  fact  would  only  be  inter- 
esting from  a  scientific  standpoint.  It  would  not  practically  affect  the 
question  nor  alter  the  fact  that  the  coition  which  results  in  fertilizing 
the  female  is  performed  on  land,  as  a  result  of  natural  laws,  the  viola- 
tion of  which  to  any  considerable  extent  must  eventually  endanger  the 
existence  of,  if  not  promptly  and  absolutely  destroy,  the  race. 

The  British  Commissioners,  undeterred  by  these  very  obvious  objec- 
tions and  misled,  no  doubt,  by  inaccurate  and  undisclosed  information, 
assert  that  there  is  a  certain  class  of  "immature  males,"  known  as  "half 
bulls"  or  "reserves,"  that  poach  upon  the  preserves  of  the  seniors  and 
cover  many  of  the  females  which  escape  the  attention  of  the  older 
males  upon  the  rookery  grounds  and  in  stieh  cases  the  act  of  coition  is 
usually  accomplished  at  seal    (Sec.  287.) 

It  is  unfortunate  that  an  assertion  inconsistent  with  scientific  in- 
vestigation and  comiiletely  refuted  by  abundant  proof  should  have 
been  thus  lightly  made  and  suffered  to  rest  upon  mere  affirmation. 
The  statement  is  certainly  not  correct;  but,  even  if  it  were,  it  merely 
states,  and  this  most  vaguely,  that  an  irregular  practice  is  sometimes 
followed  in  exceptional  cases. 

But  the  important  point  that  the  "  breeding  females"  are  only  served 
by  the  "  breeding  males  "  on  land  is  shown  by  the  report  of  the  British 
Commissioners  themselves: 


SUMMARY   OP   THE    EVIDENCE 


257 


The  remaining — and,  at  the  time  in  question,  most  important — class 
is  that  of  the  breeding  females.  These,  sometime  after  the  birth  of  the 
young  and  the  subsequent  copulation  with  the  male,  begin  to  leave  the 
rookery  ground  and  seek  the  water.  This  they  are  able  to  do  because 
of  the  lessened  interest  of  the  beach  masters  in  them,  and  more  partic- 
ularly after  many  of  the  beach-masters  themselves  begin  to  leave 
thc?r  stands.    (Sec.  300.) 

In  tiection  309  Bryant  is  quoted  thus: 

Bryant,  after  describing  the  relaxation  in  watchfulness  of  the  male 
after  impregnation  has  been  accomplished,  says  of  the  female:  "  From 
that  time  she  lies  either  sleeping  near  her  young  or  spends  her  time 
either  floating  or  playing  in  the  water  near  the  shore,  returning  occa- 
sionally to  suckle  her  i)up." 

This  opinion  is  especially  important,  as  the  same  person  is  relied 
upon  in  another  place  as  authority  to  show  that  the  habit  of  coition  on 
land  has  been  somewhat  modified  since  1874.  It  certainly  seems 
strange  that  if  coition  on  land  was  the  rule  and  the  exceptions  rare 
prior  to  1874  "coition  on  land  seems  not  to  be  the  natural  method^  (Sec. 
296.)  There  is  evidently  an  error,  either  in  the  transcription  or  in  the 
original  statement.  Mr.  Bryant  adds  that  "only  rarely — perhaps  in 
three  cases  out  of  ten — is  the  attempt  to  copulate  under  such  circum- 
stances effectual."  This  is  in  direct  contradiction  to  the  conceded  and 
established  fact  that  the  breeding  females  are  fertilized  on  land.  It  is 
difficult  to  suppose  that  Nature  did  not  teach  these  animals  from  the 
earliest  date  the  most  "natural"  way  of  satisfying  their  instinct  and 
perpetuating  their  species.  Perhaps  the  British  Commissioners  would 
not  have  been  driven  to  the  extremity  of  quoting  such  statements  were 
it  not  for  the  necessity  of  supporting  their  theory,  viz,  the  mischievous 
diminution  of  tlie  males  by  slaughter  on  the  islands. 

Taking  these  statements  altogether,  they  clearly  prove  the  habits  of 
the  breeding  animal  to  be  as  we  have  contended,  subject  possibly 
to  alleged  exceptions  which,  even  if  firmly  established,  would  not  im- 
pair the  substance  of  the  contention.  It  might,  perhaps,  be  safe  to 
rest  this  branch  of  the  case  at  this  point  and  to  submit  to  this  learned 
Tribunal  that  the  inconsistencies  and  self-repugnances  of  the  Report  are 
such  as  to  deprive  it  of  all  value  as  a  guide  upon  this  branch,  at  least, 
of  the  discussion.  We  shall,  however,  even  at  the  risk  of  importunity, 
pursue  the  subject  still  farther. 

The  statement  in  the  Case  of  the  United  States  as  to  the  habits  of 
the  seals  in  the  act  of  reproduction  is  as  follows  (p.  110): 
14749 17 


I'.' 


4 


■jit 


1  h . 


'II 


258 


ARGUMENT  OF  THE  UNITED  STATES. 


The  act  of  coition  takes  place  upon  land,  which  by  reason  of  the  for 
mation  of  the  genital  organs  is  similar  to  that  of  other  mammals.  It  is 
violent  in  character  and  consumes  from  Ave  to  eight  minutes. 

This  statement  is  not-a  mere  affirmation  unsupported  by  authority 

It  is  based  in  part  upon  the  evidence  of  which  we  here  give  abstracts: 

_,Mr.  Joseph  Stanley-Brown  (Appendix  to  Case  of  the  United  States, 

Vol.  II,  p.  14),  a  geologist  by  profession,  and  as  such  employed  in  the 

United  States  (ieological  Survey,  says: 

Pelagic  coition  I  believe  to  be  impossible.  The  process  upon  land  by 
reason  of  the  formation  of  the  genital  organs  is  that  of  a  mammal,  is 
violent  in  character,  and  consumes  from  Ave  to  eight  minutes.  The 
relative  sizes  of  the  male  and  female  are  so  disproportionate  that  coition 
in  water  would  inevitably  submerge  the  female  and  require  that  she 
remain  under  water  longer  than  would  be  possible  to  such  an  am- 
l)hibian.  I  have  sat  upon  the  cliffs  for  hours  and  watched  seals  beneath 
me  at  play  in  the  clear  water.  It  is  true  that  many  of  their  antics  might 
be  mistaken  for  copulation  by  a  careless  observer,  and  this  may  have 
given  rise  to  the  theory  of  pelagic  coition.  I  have  never  seen  a  case 
of  the  many  observed  which  upon  the  facts  could  properly  be  so  con- 
strued. 


Mr.  John  M.  Morton,  United  States  shipping  commissioner  at  San 
Francisco,  went  to  Alaska  in  1870,  arriving  at  St.  Paul  Island  in  Octo- 
ber. He  remained  until  the  close  of  the  season  in  the  following  year. 
In  1872  he  visited  all  the  trading  posts  of  the  Alaska  Commercial  Com- 
pany. The  summer  of  1873  he  spent  on  the  Island  of  St.  George.  In 
1875  and  1876  he  again  visited  and  spent  both  summers  on  St.  Paul 
Island.  He  was  at  all  times  greatly  interested  in  observing  the  move- 
ments and  habits  of  these  animals,  and  scarcely  a  day  passed  that  he 
did  not  visit  one  or  more  of  the  rookeries.  During  the  seasons  of 
1877  and  1878,  while  serving  in  the  capacityof  special  Treasury  Agent, 
he  devoted  his  best  attention  and  study  to  this  subject. 

This  is  his  language  in  his  sworn  deposition  which  appears  at  page 
67,  Volume  II,  of  the  Appendix  to  the  Case  of  the  United  states: 

I  desire  also  to  express  my  belief  concerning  the  seal  life  that  the 
act  of  copulation  can  not  be  successfully  performed  in  the  water.  Those 
who  have  witnessed  its  accomplishment  on  the  rookeries  must  coincide 
with  such  opinion.  A  firm  foundation  for  the  support  of  the  animals, 
which  the  ground  supplies  and  the  water  does  not,  is  indispensable  to 
oppose  the  pushing  motion  and  forceful  actio.-  of  the  posterior  parts  of 
the  male  which  he  exerts  during  the  coition.  The  closest  observation 
which  I  have  been  able  to  give  to  the  movements  and  habits  of  the 
seals  in  the  water  has  furnished  no  evidence  to  controvert  the  aboye 
opinion. 


Ith 

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Mr. 

twent' 


SUMMARY    OF    TlIK    EVIDENCE. 


269 


S.  R.  Nettleton,  a  resident  of  Seattle,  Wa.^li.,  was  appointed  Special 
Agent  of  tbe  Treasury  Department  in  the  autumn  of  1881),  at  wliioh 
time  he  wont  to  the  island  of  St.  I'aul  in  the  performance  of  his  duties, 
lie  returned  to  the  States  in  T^'JO,  and  in  1891  returned  to  St.  Paul 
Island,  and  remained  there  tlirough  June  and  July,  and  was  then 
transferred  to  the  island  of  St.  George,  where  he  remained  until  June, 
181)2.  In  the  discharge  of  his  duties  as  Treasury  agent,  ho  made  such 
observations  as  could  be  taken  fr<mi  the  breeding  rookeries  and  the 
waters  immediately  adjacent  thereto.  His  statement  of  facts  is  based 
upon  personal  observation  as  well  as  the  information  received  from  the 
natives  of  such  islands  and  the  white  men  resident  thereon. 

This  is  his  language  (Appendix  to  Case  of  the  United  States,  Vol.  II, 
p.  75): 

Keferring  to  the  question  as  to  vhether  pelagic  coition  is  possible,  I 
have  to  say  that  I  have  never  seen  it  iitteni[»ri'd,  but  from  my  observa- 
tions I  have  come  to  the  conclusion  that  pelagic  coition  is  a  physical 
impossibility. 

Dr.  H.  H.  Mcintyre,  superintendent  for  the  lessees  of  the  Pribilot 
Islands,  during  the  entire  term  v,f  their  lease,  visited  the  islands  twice 
in  the  summer  of  1870,and  there  he  remained  constantly  from  April,  1871, 
until  fespiember,  1872,  and  thereafter  went  to  the  islands  every  summer 
from  1873  until  1889,  inclusive,  excepting  1883,  1884,  and  1885.  His 
opportunities  for  observation  were  excellent,  for  he  remained  on  the 
islands  four  months,  from  May  until  August,  in  each  season,  supervis- 
ing the  animal  seal  catch,  examining  the  condition  of  seal-life,  study- 
ing the  habits  of  seals,  and,  in  brief,  doing  such  work  as  the  interests 
of  the  lessees  seemed  to  demand.  He  says  (Appendix  to  Case  of  the 
UTiited  States,  Vol.  II,  p.  42) : 

It  has  been  said  that  copulation  also  takes  place  in  the  water  be- 
tween these  young  females  and  the  so-called  "nonbreeding  males,"  but 
with  the  closest  scrutiny  of  the  animals  when  both  sexes  were  swim- 
ming and  idaying  together  under  conditions  the  most  favorable  in 
which  they  are  ever  found  for  observation,  I  have  been  unable  to  verify 
the  truth  of  this  assertion.  Aftev  coitus  on  shore,  the  young  female 
goes  off  to  the  feeding  grounds  or  remains  on  or  about  the  beaches, 
ilisporting  on  the  land  or  in  the  water  as  her  inclination  may  lead  her. 
flic  male  of  the  same  age  goes  upon  the  ''hauling  grounds"  back  of  or 
lioside  the  rookeries,  where  he  remains  the  greater  part  of  the  time,  if 
unmolested,  until  nearly  the  date  of  his  next  migration. 

Mr.  Arthur  Newman  had  lived,  at  the  time  of  his  deposition,  over 
twenty  years  on  the  Aleutian  Islands.    For  eight  years  he  had  been 


t        i 


% 


fill 


iF^fii; 


y' 


>  'i/i: 

It 


l\'.> 


260 


ARGUMENT   OF   THE    UNITED    STATES. 


agent  for  the  Alaska  Commercial  Conipauy,  at  Obernofsky,  and  for 
ten  years  he  had  actetl  in  the  same  capacity  at  Umnak,  He  had  every 
opportunity,  as  will  appear  from  his  deposition  on  page  210,  Vol.  II, 
of  the  Appendix  to  the  Case  of  the  United  States,  to  observe  the  habits 
of  the  seals. 

This  is  his  language: 

I  have  seeu  seals  sleeping  on  kelp  and  feeding  about  it,  bnt  have 
never  seen  them  copulate  anywhere  except  on  a  rookery.  I  do  not  be- 
lieve that  pups  born  on  kelp  could  be  properly  nursed  and  broujjht  up. 
1  do  believe  that  it  is  necessary  to  their  suecessful  existence  that  they 
be  born  on  land,  since  they  can  not  swim  at  birth, 

Norman  Hodgson  {ibid.,  p.  367),  a  resident  of  Port  Townsend,  in 
the  State  of  Washington,  and  a  fur-seal  hunter  by  occupation,  gives 
many  interesting  details  as  to  the  habits  of  the  seal.  On  the  point 
now  under  consideration,  he  says: 

I  do  not  believe  it  possible  for  fur-seals  to  breed  or  copulate  in  the 
water  at  sea,  and  never  saw  or  heard  Oi  the  action  taking  place  on  a 
patch  of  floating  kelp.  I  have  never  seen  a  young  fur-seal  pup  of  the 
same  season's  birth  in  the  water  at  sea  on  a  patch  of  floating  kelp,  and, 
in  fact,  never  knew  of  their  being  born  anywhere  save  on  a  rookery.  I 
have,  however,  cut  open  a  gravid  cow  and  taken  the  young  one  from 
its  mother's  womb  alive  and  crying.  I  do  not  believe  it  possible  for  a 
young  fur-seal  pup  to  be  successfully  raised  unless  born  and  nursed  on  a 
rookery.  I  have  seen  fur-seals  resting  on  patches  of  floating  kelp  at 
sea,  but  do  not  believe  they  ever  haul  up  for  breeding  purposes  any- 
where except  on  the  rookeries. 

Charles  Bryant,  v.l.o  bad  spent  considerable  time  on  the  Islands  and 
had  acted  during  a  period  of  nine  years  as  special  a^rent  of  the  Treas- 
ury Department,  says  {ibid.,  p.  Q] : 

In  watching  the  seals  while  swimming  about  the  islands,  I  have  seen 
cases  wheie  they  appear&ii  to  be  coi)ulating  in  the  water,  but  I  am  cer- 
tain, even  if  this  were  (-he  case,  that  the  propagation  of  the  species  is 
not  as  a  rule  efl'ected  in  this  way,  the  natural  and  usual  manner  of 
coition  being  upon  land. 

Gapt.  James  W.  Budington,  who  testified  to  his  experience,  which 

was  considerable,  in  seal  hunting  at  Cape  Horn  and  in  the  Southern 

Atlantic  Ocean,  say  {ibid.,  p.  595) : 

I  am  also  convinced  that  copulation  takes  place  on  land  before  they 
migrate,  the  period  of  gestation  being  about  eleven  months. 

Samuel  Falconer,  a  witness    whose  experience  and  qualiflt£i,tions 

have  been  mentioned  heretofore,  says  {ibid.,  p.  165) : 


SUMMARY   OF   THE   EVIDENCE. 


261 


Ah  a  jfoneral  rule,  the  iiupregnation  is  by  the  bull  to  wlioae  liarom 
slie  belongs,  and  not  by  the  young  inah^s,  as  has  Honiothnes  been  atateU. 
Tliese  young  males  also  jjursue  a  female  when  slie  is  allowed  to  leave 
the  harem  and  go  in  tlie  water,  but  slu>  refuses  them.  I  am  positive 
from  my  observations  that  copulation  in  tlie  water  could  not  be  cfi'cc- 
tual,  and  would  be  a  most  unnatural  occurrence. 

John  Armstrong,  for  a  long  time  an  employe  in  the  Alaskan  service 
in  connection  with  the  sealeries  testified  with  nuujh  caution,  and  is  the 
only  one  of  the  witnesses  who  does  not  speak  with  absolute  confidence. 
His  testimony  is  as  follows  {ibid.,  p.  2): 

I  am  asked  whether  the  seals  copulate  in  the  water.  Itisaquestion  that 
is  often  discusaeil  at  the  islands,  and  neither  the  scientific  observers 
nor  the  unscientific  are  able  to  agree  about  it.  I  have  seen  seals  in 
position  when  it  seemed  to  be  attempted,  but  doubt  whether  it  is  effec- 
tually accomplished.  If  it  were,  I  think  we  should  see  pups  sometimes 
born  late  and  out  of  season,  but  such  is  not  the  case. 


v.— The  Pup  is  Entirely  Dependent  upon  its  Mother  for 
Nourishment  fob  Several  Months  after  its  Birth. 

The  Cows  will  suckle  their  own  Pups  only  and  the  Suck- 
ling is  done  only  on  Land. 

As  in  the  case  of  all  mammalia,  the  young  must  be  dependent  for 
nourishment  durin, :  a  certain  period  upon  the  milk  furnished  by  the 
mother.  The  proof,  moreover,  is  uncontradicted,  and  the  British  Com- 
missioners admit  that  the  suckling  is  done  only  on  land.  There  is  a 
(luestion  raised,  however,  which  it  may  be  useful  to  discuss,  namely: 
Are  the  pups  suckled  only  by  their  mothers  or  do  these  act  indiscrim- 
inately and  give  nourishment  to  such  young  as  they  may  happen  to 
find  conveniently  at  hand?  It  is  asserted  in  the  Case  of  the  United 
titates  that  these  animals  constitute  no  exception  to  the  general  rule  by 
which  the  mother  recognizes  her  own  offspring  and  nourishes  it  alone. 
This  is  the  language  of  the  Case  (page  114) : 

A  cow,  as  soon  as  a  pup  is  brought  forth,  begins  to  give  it  nourish- 
ment, the  act  of  nursing  taking  place  on  land  and  never  in  water,  and 
she  will  only  suckle  her  own  offspring.  This  fact  is  verified  by  all  those 
who  have  ever  studied  seal  life  or  had  experience  upon  the  islands. 

William  Brennan  (Appendix  to  Case  of  the  United  States,  Vol.  II,  p. 
'159).  The  testimony  of  Mr.  Brennan,  a  native  of  Great  Britian  and  a 
resident,  at  the  time  of  making  his  deposition  in  1892,  of  Seattle,  in  the 
State  of  Washington,  is  interesting  and  enters  into  minute  details, 


Ml'^ 


■■■■y- 


F 


2G2 


ARfcr.  MENT   OF    THE    UNITED    STATES. 


I 


whicii  i-ould  only  be  famished  by  a  i)ersou  who  hail  practically  studied 
the  !!iai)iect.     He  says ; 


In  May  the  bulla 
cows  fome  thre«-  or  i\ 
they  mean  to    hold 


strongest  wins.     Eadi 
api)rouch,  there  is  war. 
sealH.  apart  from  eaci 
and  lihe  younj;  in  an 
remain  with  their  il    i 
until  they  can  f^o  iiit<    ri 
ing  on  the  beach  for  tl. 
from  the  rof>kerie8  out  t< 
thev  can  not  swim,  aad 


'nre  to  haul  up  on  tlic  rookeries,  and  th«^ 

ks  later.     The  nulls  rlioose  such  fi'roundas 

through   the  summer,    (iglit  savagely,   and  the 


uas  his  own  family,  and   should  a  stranger 

On  the  rookeries  one  mnv  see  ail  classes  of 

.  the  bulls  and  breeding  cows  in  one  plaiM- 

The  i)ups  are  born  on  tlie  rookeries,  and 

living  wholly  upon  tlieir  mother's  milk 

-ea  and  v^'are  for  themHelves.     There  is  noth- 

old  ones  to  eat,  and  they  go  several  miles 

sea  to  obtain  food.     Wlien  the  pups  are  born 

jhe  mothers  take  them  to  the  water's  edge, 


whwe  one  <-an  see  th(»UHaijds  paddling  and  struggling  in  tlie  surf.    The 


noise  made  by  the  m< 
the  pups  in  answer,  m 
betbr<*  irs      •nnj;. 

they  call  -u  lUto    ue  wate; 
stay  on  the  islanu. 


■i-ying  for  their  pu})8,  and  the  bleating  of 

constant  roar.     The  cow  is  three  years  old 

"he  pups  are  about  forty-tive  days  old  before 

but  they  nurse  the  mother  as  long  as  they 


This  testimony,  if  reliablfe.  and  there  is  no  reason  to  dispute  its  ac 
curacy,  establishes  the  depemdence  of  the  pup  upon  its  mother  uot  only 
for  food,  but  for  care  and  instruction  in  swimming. 

Joseph  Stanley-Brown,  whose  contributions  to  the  subject  of  far- seal 
life  and  their  habits  are  exti?emelyvaluai  le  and  are  trequently  referred 
to  in  the  Oa»e  of  the  Unite*!  States,  is  very  emphatic  and  satisfaetory 
xEpan  this  subject.  His  qualilications  have  already  been  stated  in  con- 
neetaon  with  other  propositions.  He  says  (ibid.,  pp.  15-10) : 

For  the  first  few  days,  and  possibly  for  a  week,  or  even  ten  days,  the 
female  is  able  to  nourish  her  young  or  offspiing,  but  she  is  soon  com 
pelled  to  seek  the  sea  for  food,  that  her  voracious  young  feeder  may  be 
properly  nourished,  and  this  seems  to  be  perniitied  on  the  part  of  the 
male,  even  though  tmder  protestation.  The  whole  lihysical  economy 
of  the  seal  seems  to  be  arranged  for  alternate  feasting  and  fasting,  and 
it  is  probable  that  in  the  early  days  of  its  life,  the  yonng  seal  might  be 
amply  nourished  *    *    *     vithout  herself  resorting  h>  the  sea  for  food. 

Th<'  female  gives  l)irth  to  but  a  single  pup.  The  labor  is  of  short 
duration,  and  seems  not  to  produce  great  pa'ii.  In  the  tirst  weeks  ot 
its  life,  the  pup  does  not  seem  to  re(;ogniz'.  its  mother,  but  the  latter 
will  recognize  and  select  her  offspring  amon  t  hundreds. 

The  young,  upon  being  born,  have  all  the  ap])earam;e  of  pups  of  a 
Newfoundland  dog  with  flippers.  On  emerging  from  their  warm  rest- 
ing ]>lace  into  the  chill  air,  they  utter  a  plaintive  l)leat  not  unlike  that 
of  a  young  lamb.  The  I'lother  fondles  them  with  many  demonstra- 
tions of  aftection,  and  *-'<•:  y  i  egin  nursing  soon  after  theii'  birth.  ♦   *  ♦ 

The  ycmng  seals  reqiiM-  the  nourishing  care  of  their  mother  for  at 
least  four  months,  and  pups  have  beeT>  killed  on  the  island  late  in 
November  the  stomaivhs  of  which  were  filled  with  milk.    •    *    * 

The  ]uips  are  afraid  of  the  water;  they  have  to  learn  to  swim  by  re 
peate<l  efiorts,  and  even  when  able  to  maintain  themselves  in  the  quiet 


I 

I 


SUMMARY   OP   THE   EVIDENCE. 


263 


waters  will  rush  in  frantic  and  ludicrous  linste  away  from  an  approach- 
iug  wave,  I  have  taken  pups  2  or  3  weeks  old  and  carried  them  out 
into  still  water  and  they  awkwardly,  but  in  terror,  lloundcred  toward 
the  shore,  although  they  could  ha\'^e  escaped  Tiie  by  going  in  the  other 
du-ection.  In  three  trials,  paddling  in  all  about  00  feet,  the  pups 
became  so  exh:.  -  ted  that  they  would  have  been  drowned  had  I  not 
rescued  them.  )i  the  piips,  when  collected  in  groups  or  pods  near  the 
shore  were  to  be  overtaken  by  even  a  moderate  surf,  tliey  would  be 
drowned,  and  such  accidents  to  thein  do  oc(!ur  (m  the  island  before 
they  have  entirely  mastered  the  art  of  swimming. 

Charles  Bryant  has  been  quoted  in  connection  with  other  proposi- 
tions contained  in  the  Case  of  the  United  States.  He  testifies  upon  this 
point  as  follows  {ibid.,  p.  5)  : 

The  pup  is  nursed  by  its  mother  from  its  birth  so  long  as  it  remains 
on  the  islands,  the  mother  leaving  the  islands  at  diti'erent  intervals 
of  time  after  the  pup  is  3  or  4  days  old.  1  have  seen  pups,  which  I 
had  previously  marked  witli  a  ribbon,  left  for  three  or  four  days  con- 
secutively, the  mothers  going  into  the  water  to  feed  or  bathe.  A 
mother  seal  will  instantly  recognize  her  offspring  from  a  large  group 
of  pups  on  the  rookery,  distinguishing  it  by  its  cry  and  smell;  but  I  do 
not  think  a  jiup  can  tell  its  own  mother,  as  it  will  nose  about  any  cow 
which  comes  near  it.  A  female  seal  does  not  suckle  any  pup  save  her 
own,  and  will  drive  away  any  other  pups  which  approach  her. 

1  am  positive  that  if  a  mother  seal  was  killed  her  pup  must  inevi- 
tably perish  by  starvation.  As  evidence  of  this  fact,  I  will  state  that 
I  have  taken  stray,  motheiless  pups  found  on  the  sand  beaches  and 
placed  them  upon  the  breeding  rookeries  beside  milking  females  and 
in  all  instances  these  pups  have  finally  died  of  starvation. 

Testimony  such  as  this  must  be  conclusive,  except  on  the  theory  of 
absolute  and  intentional  perjury.  It  is  a  satisfaction  to  the  counsel 
for  the  United  States  to  be  able  to  state  that  no  witness  has  been  will- 
ing, so  far  as  they  know  and  so  far  as  appears  from  the  British  Com- 
missioners' Eeport,  to  put  himself  upon  record,  with  or  without  oath, 
as  directly  contradicting  these  emphatic  statements. 

John  Fratis,  a  native  of  Ladrone  Islands,  went  to  St.  Paul  Island  in 
1869,  married  a  native  woman  of  that  place  and  became  one  of  the 
people.  Was  made  a  native  sealer  and  resided  on  the  island  from  that 
time  on.  His  experience,  therefore,  is  valuable.  He  says  {ibid.,  p. 
108): 

The  pups  are  liorn  soon  after  tlie  arrival  of  the  <  ows,  and  they  are 
helpless  and  can  not  swim  and  they  would  drown  if  put  into  water. 
Tlie  pups  have  no  sustenance  except  wliat  the  cows  furnish  and  no 
<'ow  suckles  any  jmp  but  her  own.  The  ]>u|»s  would  suck  aay  eow 
if  the  (!ow  would  let  them.  After  the  ;,  in  is  a  few  days  old  the  cow 
goes  into  the  sea  to  feed,  and  at  first  she  will  only  stay  away  for  a  few 
hours,  bu*^  as  the  i)up  grows  stronger  she  will  stay  away  more  and 
more  until  she  will  uometimes  be  away  fur  a  week. 


*  ■, 


■  >! 


Pfw^ssa* 


wm 


^  i 


264 


ARGUMENT  OF  THE  UNITED  STATER. 


I-  I 


Numerous  other  witnesses  were  called  who  agreed  that,  the  only 
means  of  sustenance  for  the  pup  while  it  reniaiued  on  the  island,  that 
is,  tor  three  or  four  i  onths  after  its  birth,  is  its  mother's  milk,  and  that 
it  would  perish  if  deprived  of  the  same.  Upon  this  point  the  follow- 
ing testimony  msiy  bo  read: 

William  Healey  Ball  [ibid.,  p.  23);  Samuel  Falcoi\er  {ibid.,  p.  165); 
William  S.  Hereford  (i/7i<?.,  p.  35);  Nicoli  KvukoS  {ibid.,  p.  135). 
H.  W.  Mclntyre  says  {ibid.,  p.  130)  : 

Within  a  few  days  after  landing  (it  may  be  but  a  few  hours  or  even 
minutes,  as  I  have  seen)  the  female  gives  birth  to  her  young,  but  one 
being  brought  forth  each  year.  The  reported  occa'''^  nl  birth  of  twins 
is  not  verified.  These  little  ones  (pups  as  they  I'o  ceiled)  are  com- 
paratively helpless,  particularly  awkward  in  movemtiuC,  and,  unlike 
the  hair-soal,  are  unable  to  swim.  They  are  nursed  by  the  mother, 
who,  after  copulation  has  taken  place,  is  permitted  by  the  old  male  to 
go  at  will  in  (piest  of  food.  At  about  six  weeks  old,  the  young  gather 
in  gioupa  and  shortly  aft,er  learn  to  swim,  but  depend  for  a  long  period 
upon  the  mother  for  sustenance;  hence  her  destruction  must  result  in 
the  death  of  the  young  through  starvation. 

So,  also,  J.  H.  Moulton  {ibid.,  p.  72). 
Mr.  Noyes  says  {ibid.,  p.  82) : 

The  pup  is  entirely  dependent  upon  its  dam  for  sn;?tenance,  and 
when  it  is  a  few  days  old  she  goes  into  the  sea  to  feed,  returning  at 
intervals  of  a  few  hours  at  first,  and  gradually  lengthening  the  time 
as  the  pups  grow  older  and  stronger,  until  she  will  be,  sometimes,  away 
for  a  whole  week.  During  these  journeys,  it  is  my  opinion,  she  goes 
a  distance  of  from  40  to  200  miles  from  the  islands  to  feed;  and  it  is 
at  this  time  she  falls  a  prey  to  the  pelagic  hunter. 

Returned  to  the  rookery,  the  cow  goes  straight  to  where  she  left  her 
pup,  and  it  seems  she  instantly  recognizes  the  spot  by  smelling,  and  it 
is  equally  certain  that  the  pup  can  not  recognize  its  dam.  I  have  often 
seen  pups  attempt  to  suck  cows  promiscuously,  yet  no  cow  will  suckle 
any  pup  but  her  own.  . 

J.  C,  Redpath  (*«>td.,  pp.  148, 149): 


No  cow  will  nurse  any  pup  but  her  own,  and  I  have  often  watched 
the  pups  attempt  to  suck  cows,  but  they  were  always  driven  off;  and 
this  fact  convinces  me  that  the  cow  recognizes  her  own  pup  and  that 
the  pup  does  not  know  its  dam.  At  birth  and  for  several  weeks  after, 
the  pup  is  utterly  helpless  and  entirely  dependent  upon  its  dam  for  sus- 
tenance; and  should  anything  prevent  her  return  during  this  period  it 
dies  on  the  rookery.  This  has  been  demonstrated  beyond  a  doubt 
since  the  sealing  vessels  have  operated  largely  in  the  Behring  Sea  dur- 
ii'g  the  months  of  July,  August,  and  September,  and  which,  killing  the 
cows  at  the  feeding  grounds,  left  the  pups  to  die  on  the  islands. 

At  about  5  weeks  old  the  pups  begin  to  run  about  and  congregate 
in  bunches  or  "pods,"  and  at  0  to  S  weeks  old  they  go  into  the  shallow 


SUMMARY   OV  THE   EVIDENCE. 


265 


water  and  {^rsulually  learn  to  swim.  They  are  not  amphibious  when 
born  nor  can  they  swim  for  several  weeks  thereafter,  and  were  they 
put  into  the  water  would  perish  beyond  a  doubt,  af3  has  been  well  estab- 
lished by  the  drowning  of  pups  caught  by  the  .surf  in  stormy  weather. 
After  learning  to  swim,  the  pups  still  draw  sustenance  from  the  cow.s, 
and  I  have  noticed  at  the  annual  killing  of  pups  for  food,  in  Novem- 
ber, that  their  stomachs  were  always  full  of  milk  and  nothing  else,  al- 
though the  cows  bad  leit  the  islands  some  days  before.  1  have  no 
knowledge  of  the  pups  obtaining  sustenance  of  any  kind  except  that 
furnished  by  the  cows;  nor  have  I  ever  seen  anything  but  milk  in  a 
dead  pup's  stomach. 

Daniel  Webster  asserts  positively  that  the  death  of  every  mother 
causes  the  death  of  her  pup,  ivhich  is  cntirelu  dependent  upon  her  for  Us 
sustenance.  Mr.  Webster's  testimony  is  valuable  not  only  for  its  in- 
trinsic value,  but  because  its  reliability  is  vouched  for  by  the  British 
Commissioners  themselves  (Sec.  677). 

It  will  be  observed  that  all  the  witnesses  cited  above  are  men  spe- 
cially capable,  of  long  experience  and  a  knowledge  of  the  :*ubject  sufii- 
cient  to  enlighten  any  court  whose  function  it  may  be  to  ascertain  the 
facts  connected  with  seal  life.  Such  testimony  can  not  iail  to  be  con- 
clusive in  the  judgment  of  this  Court,  unless  it  should  be  rejected  as 
willfully  and  inientionally  false.  No  ground  for  such  a  wholesale  imj)u- 
tation  upon  th«i  charact(;r  of  apparently  intelligent  and  reputable  men 
can  be  suggested.  The  functions  of  every  court  of  justice  become  im- 
possible, and  decisions  on  questions  of  fact  must  be  left  to  the  caprice 
of  judges,if  such  testimony  may  be  arbitrarily  disregarded.  Surely  the 
conjectures  and  conclusions  of  an  adversary  unsupported  by  the  slightest 
pretense  of  proof,  in  a  legal  souse,  can  not  be  deemed  a  sufficient  ground 
for  such  a  charge.  However  high  may  be  the  character  of  the  British 
Commissioners  for  intelligence  and  integrity,  their  bald  assertions  can 
not  take  the  place  of  those  aids  to  judicial  investigation  which  the  ex- 
perience of  allcivilized  nation.shas  shown  to  be  indispensable.  It  would, 
indeed,  be  a  difficult  task  for  the  Arbitrators  to  reach  any  conclusion  as 
to  the  material  questions  of  fact  in  tliis  case  if  the  example  of  the  British 
Commissioners  had  been  followed  by  the  Commissioners  of  the  United 
States  and  both  sides  had  coulined  themselves  to  conjectural  assertions 
and  partial  and  unsatisfactory  deductions  from  uncertain  premises.  A 
manifest  disposition  to  perform  the  pari;  of  an  advo(!iite  riitlicr  than  the 
duty  of  an  aid  to  the  court  in  the  asceiLaiiiment  of  the  truth,  must  de- 
tract largely  from  the  value  of  the  work  performed  by  Che  Commissioners 
for  Great  Britain. 


■    I'-., 


I 
:■  i, 
\     \ 


f      I 


266 


ARGUMENT   OF   THE   UNITED   STATES. 


V J.— The  Cows,  while  Suckling,  go  to  the  Sea  for  Food  and 
Sometimes  to  Distances  as  (Ireat  as  One  Hundred  and  Two 
Hundred  Miles,  and  are  during  such  Excursions  Exposed 
to  Captuke  by  Pelagic  Sealers. 

Tlie  statemeBt  iu  the  Case  of  the  Uiiited  States  is  as  follows  (p.  115) : 

Necessarily,  after  a  few  days  of  nursing  her  pup,  the  cow  is  compelled 
to  seek  food  in  order  to  provide  sufficient  nourishment  for  her  offspring. 
Soon  after  coition  she  leaves  the  pup  on  the  rookery  and  goes  into  the 
sea,  and  as  the  pup  gets  older  and  stronger,  these  excursions  lengthen 
accordingly  until  she  is  sometimes  absent  from  the  rookeries  for  a  week 
at  a  time. 

The  absolute  correctness  of  this  statement  is  demonstrated  in  the  evi- 
dence. 

A  cow  nurses  only  her  own  pup.  The  importance  of  deciding  tliis 
question  correctly  makes  it  necessary  that  we  should  give  special  at- 
tention to  the  evidence  upon  the  subject.  The  British  Commissioners 
have  taken  a  different  view  and  are  without  support  in  the  general  un- 
derstanding of  men  as  to  the  practice  and  probabilities  in  such  cases. 
It  is  easy  to  demonstrate  that  the  ass(^rtion  on  page  ll.')  of  the  Case  of 
the  United  States,  to  theeffect  above  stated  is  borne  out  by  overwhelm- 
ing i)roof. 

Kerrick  Art^manoff  (AppcLdix  to  Case  of  the  United  States,  Vol. 
II,  p.  100)  says: 

The  mother  seals  know  their  own  pups  by  smelling  tliem  and  no  seal 
will  allow  any  but  her  own  pup  to  suck  her. 

Thomas  F.  Morgan  iihid.,  p.  02)  says: 

After  birth  a  pup  at  once  begins  to  suckle  its  mother,  Avho  leaves 
its  offspring  only  to  go  into  the  water  for  food,  which  1  believe  from 
my  observation  consists  mainly  of  tisli,  Sfjiiids  and  crustaceans.  In 
her  seareli  for  food  the  female,  in  my  opinion  goes  40  miles  or  even 
furtlier  from  the  islands.  The  pup  does  not  appear  to  re(x»^uize  its 
mothei',  attem]»(iiig  to  draw  milk  from  any  cow  it  comes  in  contact 
with;  but  a  mother  will  at  once  recognize  her  own  pup  and  will  allu)w 
no  other  to  r.nr^se  her.  This  I  know  from  often  observing  a  cow  tight 
off  other  pups  who  approached  her,  and  search  out  her  own  pup  from 
among  them,  which  1  think  she  recognizes  by  its  smell  and  cry. 

Mr.  Morgan's  testimony  is  very  explicit  and  is  based  upon  long  ex- 
perience and  continued  observation.  ^ 

Sanjuel  Falconer,  at  one  time  deputy  collector  of  customs,  and  whose 
testimonj  has  been  quoted  on  other  points,  ^ives  the  results  of  his 
actual  observations.    He  says  {ibvL,  p.  104): 

The  place  of  birtl;  is  on  the  breeding  grounds,  wliich  takes  place 
after  the  female  lauds,  generally  witbiu  two  days.    When  first  born 


\v 


SUMMARY    OP    THE    EVIDENCE. 


267 


'  =T 


the  pup  can  not  swim,  and  docs  not  IciUii  so  to  do  until  it  is  six  or  cij^lit 
weeks  of  age.  It  is  theiet'ore  utterly  impossible  for  a  pui)  to  be  born  iu 
tlie  water  and  live.  I  have  noticed  that  when  a  jnip  of  this  ajje  is  put 
in  the  Witter  it  seemed  to  have  no  idea  of  the  use  of  its  fli|>pers,  and 
was  very  much  terrified.  A  ])up  is  certainly  for  the  Avat  six  or  eijyht 
week  ,  of  its  life  a  land  .animal,  and  is  iu  no  sense  amphilnoiis.  During 
this  i)eriod  also  a  pup  moves  very  much  like  a  young  kitten,  using  its 
hind  flippers  as  feet.  A  mother  seal  will  at  once  re(!oguize  her  pup  by 
its  cry,  hobbling  over  a  thousand  bleating  i)ups  to  reach  lier  own,  and 
every  other  approaching  her,  save  tliis  one  little  animal,  she  will  drive 
away.  *  *  *  A  i)U]>,  however,  seems  not  to  distinguish  its  mother 
from  the  other  females  about  it. 

William  Healey  Dall,a  scientist  whose  studies  w^ere  completed  under 
Prof.  Louis  Agassiz,  at  Cambridge,  iu  the  year  18G3,  and  avIio  has  been 
since  that  time  engaged  in  scientific  work,  gave  the  result  of  his  per- 
sonal examination  made  during  the  several  years  that  ho  visited  St. 
George  Island  and  the  Aleutian  Islands.  His  oi)portuiiities  ro  famil- 
iarize himself  with  aquatic  seal  life  were  excellent  and  are  fully  detailed 
in  his  deposition  on  pages  23  ,iiid  24  of  the  Api)endix  to  the  Case  of  the 
United  St^-tes.    He  says: 

From  my  knowledge  of  Tiatural  history  and  from  my  observations  ot 
seal  life,  I  am  of  the  opinion  that  it  would  be  imi)ossible  for  the  young 
seals  to  be  brought  forth  and  kei)t  alive  in  the  water.  When  it  is  the 
habit  of  an  animal  to  give  birth  to  its  young  upon  the  land,  it  is  con- 
trary to  biologic  teaching  and  common  sense  to  suppose  they  could 
successfully  briiig  them  forth  in  the  water.  It  does  not  seem  to  me  at 
all  likely  that  a  mother  would  suckle  any  pup  other  than  her  own,  for 
I  have  repeatedly  seen  a  female  select  one  pup  from  a  large  group  and 
pay  no  Attention  to  the  solicitations  of  others.  Pups  require  the  nour- 
ishment from  their  mothers  for  at  least  three  or  four  months  after  their 
birth,  and  would  perish  if  deprived  of  the  same. 

I  have  had  ample  opportunity  to  form  an  of  inioa  in  regard  to  the 
efli'ec-t  upon  the  herd  of  killing  female  seals.  Th'  fcnuile  brings  forth  a 
single  offspring  animally.  aiul  hence  the  repair  ul'  the  loss  l»y  death  is 
not  ra]>id.  It  is  evident  that  the  injury  to  the  herd  from  the  killing  ot 
a  single  female,  that  is,  tin;  producer,  is  far  greatei-  than  from  the  death 
of  the  male,  as  the  seal  is  iMdygamous  in  habit.  The  danger  of  the 
herd,  therefore,  is  just  in  proj)ortion  to  the  destruction  of  female  life. 
Killing  in  the  open  waters  is  peculiarly  destructive  to  this  animal,  l^o 
discrimination  of  sex  iu  the  water  is  possibl(\  the  securing  of  the  prey 
v/hen  killed  is  under  the  best  of  circumstances  uncertain,  and  as  the 
period  of  gestation  is  at  least  eleven  mouMis  and  of  nursing  three  or 
four  months,  the  death  of  the  female  at  any  time  means  the  destruction 
of  two,  herself  and  the  fuetus;  or  when  nursing,  three — herself,  the 
nursing  pup,  and  the  fcetus.  All  killing  of  females  is  a  nu;nace  to  the 
herd,  and  as  soon  as  such  killing  reaches  the  point — as  it  inevitablir' 
must  if  permitted  to  continue — where  the  annual  increase  will  uot  make 
good  the  yearly  loss,  then  the  destruction  of  the  herd  will  be  equally 
rapid  and  certain,  regarded  from  a  commercial  standpoint,  though  a  few 
individuals  might  survive. 

Karp  Ruterin,  a  native  of  St.  Paul  Island,  on  Avhicli  island  ho  had 
lived  up  to  the  time  of  making  his  deposition,  when  he  was  39  years  of 


m 


268 


ARGUMENT  OV  THE  UNITED   STATES. 


age,  had  been  engaged  in  driving  seals,  clubbing  and  skinning  them 
ever  since  he  was  able  to  work;  he  says  (Appendix  to  Case  of  the 
United  States,  Vol.  II,  p.  103): 

Schooners  kill  cows,  pups  die,  and  seals  are  gone.  Some  men  tell 
me  last  year,  "Karp,  seals  are  sick."  I  know  seals  are  not  sick;  I 
never  seen  a  sick  seal,  and  I  eat  seal  meat  every  day  of  my  life.  *  *  • 
No  big  seals  die  unless  we  club  them;  only  pups  die  when  starved, 
after  the  cows  are  shot  at  sea.  When  we  used  to  kill  pups  for  food  in 
November  they  were  always  full  of  milk;  the  pups  that  die  on  the 
rookeries  have  no  milk.  The  cows  go  into  the  sea  to  feed  after  the 
I>ups  are  born,  and  the  schooner  men  shoot  them  aU  the  time. 

The  same  rule  as  to  exclusive  nursing  of  her  own  pups  by  the  cow 
is  proven  to  exist  in  the  Antarctic  regions  by  Mr.  Comer. 

George  Comer  {ibid.,  p.  598)  says: 

I  have  never  seen  a  "clap-match"  suckling  more  than  one  pup,  and 
it  is  my  impression  that  a  "clap-match"  would  not  nurse  any  pup  except 
her  own,  for  I  have  seen  her  throw  other  pups  aside  and  pick  out  one 
particular  one  from  the  whole  number  on  the  rookery. 

Anton  MelovedofF,  a  native  of  Alaska,  testifies  as  follows  {ibid.,  p. 

144): 

When  the  pup  is  born  it  is  uti^rly  helpless  and  would  drown  if  put 
into  water.  Those  born  nearest  the  water  are  often  drowned  in  the 
surf  when  the  sea  is  rough  in  stormy  weather.  When  the  pup  is  a  few 
days  old  the  cow  goes  into  the  sea  to  feed  and  fjs  the  pup  grows  older 
the  cow  will  stay  longer  and  longer  until  sometimes  she  will  be  away 
for  a  week.  When  the  cows  return  they  go  to  their  own  pups,  nor  will 
a  cow  suckle  any  pup  but  her  own.  The  pups  would  suck  any  cow 
that  would  let  them,  for  they  do  not  seem  to  know  one  cow  from  another. 

H.  H.  Mclntyre,  to  whose  valuable  deposition  attention  has  bnen 
heretoforp  called,  uses  this  language  {ibid.,  p.  41): 

At  this  time  they  are  simply  land  animals,  with  less  aquatic  instinct 
arid  loss  ability  to  siistain  themselves  in  water  than  newly  hatched 
ducklings.  When  the  i)ups  are  a  few  days  old  the  mothers  leave  them 
(generally  soon  after  coition  upon  the  rookeries  with  the  old  male)  to 
go  to  the  feeding  gnMiuds,  returning  at  intervals  of  one  to  three  or  four 
days  to  suckle  th<»\r  young.  The  pups  do  not  appear  to  recognize  their 
own  dams,  but  the  mother  distinguishes  her  own  oft'spring  with  un- 
erring accuracy  and  allows  no  other  to  draw  her  milk. 

Louis  Kjmmel,  at  one  time  assistant  Treasury  agent  on  St.  George 
Island  and  a  resident  of  that  place  for  over  one  year,  testifies  as  fol- 
lows {ibid.,  p.  174) : 

A  c(rw  never  suckles  any  but  her  own  pup.  When  a  strange  pup 
approaches  a  cow  she  w  ill  drive  it  uway  from  her,  and  out  of  thousands 
of  pups  huddled  topviier  slie  will  single  her  own.  It  is  my  opinion 
that  if  a  mother  is  killed  otit  her  offspring  dies  of  starvation. 


its 
the 
proi 
sub 


SUMMARY    OF    THE    EVIDENCE. 


269 


To  the  same  effect  is  the  testimony  of  Dr.  Ilenifonl.     Williaiu  S. 

Hereford,  a  physician  of  character  and  experience,  a  graduate  of  Santa 

Clara  College,  S.  J.,  and  of  the  University  of  Pennsylvania  {ibid., 
p.  33): 

It  is  a  well-known  fact  that  the  female  seals  leave  the  islands  and  go 
great  distances  for  food,  and  it  is  clearly  proven  that  many  of  them  do 
not  return,  as  the  number  of  pups  starved  to  death  on  the  rookeries 
demonstrates. 

The  old  mother  seal  will  not  nurse  any  but  its  own  offspring  and  can 
single  it  out  of  a  band  of  thousand,  even  after  an  absence  of  days  from 
the  islands.  The  difference  between  a  well-nourished  pup  and  one 
starving  to  death  is  also  easily  recognized,  one  being  plump  and  lively, 
growing  extremely  rapidly,  the  other  slowly  dwindling  away,  its  body 
becoming  lean,  long,  and  lanky,  the  head  being  the  largest  a'^d  aost 
conspicuous  part.  The  poor  little  thing  Hnally  drops  from  sheer  ex- 
haustion in  its  tracks,  it  being  only  a  matter  of  time  before  it  succumbs 
to  starvation. 

Dr.  Hereford  narrates  in  a  highly  interesting  manner  the  efforts 
made  to  raise  '^  Little  Jiramie,"  a  child  of  adverse  circumstances,  whose 
mother  had  been  accidcTitally  killed.  This  narrative  may  be  found  on 
pages  33  and  34  of  the  Appendix  to  the  Case  of  the  United  States. 

Several  other  witnesses  concur  in  testifying  that  the  mother  will 
readily  distinguish  her  own  offspring  from  that  of  others  and  will  not 
permit  the  young  of  any  other  seal  to  suckle  her.  If  there  is  anything 
in  the  Report  of  the  Commissioners  of  Great  Britain  which  rises  to  the 
dignity  of  eviden'^.e  and  which  may  be  weighed  against  this  overwhelm- 
ing mass  of  testimony,  we  have  failed  to  discover  it.  The  plausible 
suggestion  that  they  make  in  explanation  of  the  apparent  effort  of  the 
mother  to  distinguish  her  offspring  by  smelling  the  various  pups,  is 
nhat  she  thus  goes  about  until  she  finds  one  that  does  not  smell  of 
fresh  milk  (Sec.  323). 

VII. — ^I)EATH  OF  THE  CoW  CAUSES  THE  BlEATH  OF  THE    PuP. 

Tlie  materiality  of  the  question  last  discussed,  and  of  the  fact  asserted 
and  demonstratt'd  that  the  mother  nurses  only  her  own  pup,  lies  chiefly 
in  the  correlative  assertion  that  the  death  of  the  cow  causes  the  death 
of  the  pup. 

Assuming  the  premises  to  be  established  that  the  pup  depends  upon 
its  mother  for  food  and  can  be  fed  in  no  other  way  than  by  that  mother, 
the  con<;lusion  establishes  itself  without  the  necessity  of  extrinsic 
proof.  The  testimony  directly  upon  this  point  is  voluminous,  and,  it  is 
submitted,  entirely  satisfactory.  It  goes  very  far  to  explain  one  of  the 
general  causes  for  the  di.ainution  of  the  si)ecie8. 


■;:■! 

■  I 

■;;:i; ' 


18  !' 


270 


ARGUMENT  OF  THE  UNITED  STATES. 


So  many  witnesses  have  testified  upon  this  point,  and  it  is  so  doubt- 
ful whether  any  testimony  at  all  is  needed  if  it  be  established  that  the 
pup  depends  wholly  upon  its  mother,  that  we  shall  confine  ourselves 
to  brief  abstracts. 

George  Ball  (Appendix  to  Case  of  the  United  States,  Vol.11,  p.  481)? 
a  shipmaster  and  a  sealer,  does  not  hesitate  to  say  that  the  pups  per- 
ish with  the  cows  that  he  and  his  companions  kill. 

William  Brennan  sums  up  the  situation  with  the  conclusive  argu- 
ment that  ''it  stands  to  reason  that  if  the  mothers  are  killed  while 
away  from  the  island  and  the  jiups  are  left  there  alone  they  will  surely 
die,  and  it  is  a  fact  that  many  mothers  are  killed  in  Bering  Sea"  {ibid.,  p. 
363). 

Henry  Brown,  seaman,  engaged  in  pelagic  sealing  and  residing  at 
Victoria,  British  Columbia,  gives  his  experience  in  the  slaughter  of 
gravid  females  as  well  as  the  females  taken  in  the  Bering  Sea  which 
are  not  gravid,  he  says :  These  were  cows  in  milk.  Every  seal  cap- 
tured causes  the  death  of  either  an  unborn  pup  or  the  death  of  a  young 
pup  by  starvation  on  the  islands.    He  says  {ibid.,  p.  318) : 

If  pelagic  sealing  is  continued,  espec^ially  with  guns,  in  a  few  years 
the  seal  herd  will  become  commercially  destroyed. 

Luther  T.  Franklin,  a  seal-catcher,  being  asked,  "  Do  the  pups  perish 
with  the  cows  that  you  kill?  "  answered, "  naturally  they  umst."  (Ap- 
pendix to  Case  of  the  United  States,  Vol.  II,  p.  426.) 

Charles  Lutjens  testifies,  with  probably  unconscious  force,  as  to  the 
brutality  of  the  occupation  in  which  he  is  engaged  {ibid.,  p.  459) : 

Q.  Do  the  pups  perish  with  the  cows  that  you  kill? — A.  Certainly. 
Not  alone  that,  but  they  generally  leave,  while  they  go  into  the  Ber- 
ing Sea,  a  pup  on  shore,  which  also  dies  from  not  being  able  to  get  any 
sustenance.  The  seal  wliich  is  killed  in  the  Bering  Sea  may  be  with 
pup  and  also  has  a  pup  on  shore,  which  made  the  killing  three  seals 
to  one. 

Alexander  McLean  says  that  if  you  kill  a  female  seal  you  kill  the 
pup  with  her  {ibid.,  p.  437). 

For  other  testimony  upon  this  point,  see  Daniel  Clausson  {ibid.,  p.  412), 
Luther  T.  Franklin  {ibid.,  i^.  425),  Louis  Kimel  {ibid.,  p.  174),  and  many 
others  tostifyijig  to  the  same  fact. 

Multiplication  of  extracts  could  not  add  to  the  force  of  testimony  so 
reasonable  and  conclusive  upon  its  lace. 

Indeed,  the  evidence  is  so  complete  that  the  victims  of  pelagic 


SUMMAUY    OF    THE    EVIDENCE. 


271 


slaughter  are  mainly,  if  not  wholly,  females,  us  to  forbid  contradiction. 
We  accordingly  And  that  the  British  Commissioners  make  this  admis- 
sion: "  It  is  xmdoubtedly  true  that  a  comiderable  proitoriion  of  the  seals 
taken  at  sea  are  females,  as  all  sc<(ln  of  killable  nise  are  Idlled  without 
(Userimination  of  sex  "  (Sec.  78).  It  is  true  that  they  hasten  to  add  that 
this  disproportion  is  due  in  part  to  the  persistent  killing  of  young 
males  on  land.  Possibly  this  may  be  true.  Undoubtedly  if  the 
poachers  found  killable  males  as  well  as  gravid  females,  they  would 
slaughter  both  and  the  disproportion  would  be  less  marked.  But  the 
Commissioners  do  not  pretend  that  the  absolute  number  of  femak's 
killed  would  be  any  smaller.  The  pelagic  hunter  would  kill  them  all 
with  indiscriminate  impartiality.  How  the  situation  would  be  helped 
by  this  is  not  stated,  although  it  may  show  how  the  scope  of  the  busi- 
ness might  be  enlarged.  This  curiosity  is  stimulated,  but  not  satisfied, 
by  the  admission  that  theii'  disproportion  is  in  part  explained  as 
stated ;  it  might  have  been  just  to  the  Tribunal  to  state  what  else 
might  be  said  to  throw  light  upon  the  subject. 

The  cows,  while  suckling,  go  to  sea  for  food  and  sometimes  to  dis- 
tances as  great  as  100  to  200  miles,  and  are  during  such  excursions 
exposed  to  capture  by  pelagic  sealers  (see  Case  of  the  United  States, 
]).  115).  The  statement  in  the  Case  to  this  effect  is  borne  out  by  the 
testimony  and  by  fully  substantiated  facts. 

The  vagueness  of  the  statement  made  by  the  British  Commissioners 
fails  to  conceal  the  evident  intent  to  create  the  impression  that  the 
females,  like  the  males,  may  live  and  nurse  their  young  for  a  long  time 
without  food.    In  section  307  of  their  Eeport  this  language  is  used: 

It  is  very  generally  assumed  that  the  female,  on  thus  beginning  to 
leave  the  rookery  ground,  at  once  resumes  her  habit  of  engaging  in 
the  active  quest  for  food,  and  though  this  would  appear  to  be  only 
natural,  particularly  in  view  of  the  extra  drain  jnoduced  by  the  de- 
mands of  the  young,  it  must  be  remembered  that,  with  fjcarcely  any 
exception,  the  stomachs  of  even  the  bachelor  seals  kilhid  upun  the 
islands  are  found  void  of  food,  and  that  all  seals  resorting  to  the  islands 
seem,  in  a  great  degree,  to  share  in  a  common  abstinence. 

The  concession  of  an  extra  drain  upon  a  nursing  female  is  generously 
followed  up  by  the  statement  "  that  it  may  be  considered  certain  that 
after  a  certain  period  the  females  begin  to  seek  such  food  as  can  be 
obtained."  It  is  then  stated  that  "there  is  a  very  general  belief  among 
the  natives,  both  of  the  Pribilof  and  Commander  islands,  to  the  effect 
that  the  females  do  oot  leave  the  land  to  fee(i  while  engaged  in  suckling 


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272 


ARGUMENT   OP   THE    UNITED   STATES. 


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their  young."  That  there  is  any  such  general  belief  is  most  strennonaly 
denied  on  the  part  of  tlie  United  States,  is  disproven  by  the  few  wit- 
nesses cited  by  the  British  Commissioners  themselves,  and  is  negatived 
overwhelmingly  by  the  testimony  on  the  part  of  the  United  States. 

The  painful  attempt  to  justify  pelagic  sealing  by  distortion  of  com- 
monly accepted  facts  is  nowhere  more  apparent  than  in  section  308 : 

It  appears  to  us  to  be  quite  prohahle,  however,  that  toward  the  close 
of  the  season  of  suckling,  the  female  seals  may  actually  begin  to  sp(Mi(l 
a  considerable  portion  of  their  time  at  sea  in  search  of  food.  It  is  un- 
likely that  this  occurs  to  any  notable  extent  until  after  the  middle  of 
September,  before  which  the  aeoHon  of  pelagic  sealing  in  Bering  ISca  prac- 
tically closes. 

Comment  would  be  absurd  on  this. 

"Bryant",  say  the  British  Commissioners,  "after  describing  the  re- 
laxation in  watchfulness  of  the  male  after  impregnation  has  been 
accomplished,  says  of  the  female:  'From  that  time  she  lies  either  sleep- 
ing near  her  young  or  spends  her  time  floating  or  playing  in  the  water 
near  the  shore,  returning  occasionally  to  suckle  her  pup.' " 

That  she  should  go  to  the  water  to  plfky  and  float  and  neglect  the 
opportunities  of  replenishing  her  energies,  wasted  as  they  are  by  nurs- 
ing, seems  utterly  incredible.  It  is  well  to  note  the  admission,  how- 
ever, that  during  this  period  the  suckling  is  on  laud  whither  she  returns 
to  accomplish  it. 

Elliott  is  quoted  in  the  same  section  as  stating  that  "  the  mother 
nurses  her  i)up  every  two  or  three  days,"  but  adds,  "  in  this  I  am  very 
likely  mistaken."  Again,  Elliott  says  of  the  mother,  coming  up  from 
the  sea,  that  "  she  has  been  there  to  wash  and  perhaps  to  feed  for  the 
last  day  or  two."  In  another  reference  given  by  the  British  Commis- 
siouers  from  the  same  authority,  he  is  made  to  say : 

Soon  after  the  birth  of  their  young,  they  leave  it  on  the  ground  and 
go  to  the  sea  for  food,  returning  perhaps  to-morrow,  perhaps  later,  even 
not  for  several  days,  in  fact,  to  again  suckle  and  nourish  it,  having  in 
the  meav.Hme  sped  far  off  to  distant  feeding  hanlcs.    (Sec.  309.) 

It  will  be  observed  that  this  agrees  entirely  with  the  testimony  pro- 
duced by  the  United  States.  The  report  then  goes  on  to  cite  authorities 
showing  how  far  the  cows  go  out  tor  food.  Taylor  is  quoted  as  saying 
tliat  they  go  out  every  day  a  distance  of  10  or  15  miles,  or  even  farther. 

T.  P.  Ryan  says  that  the  main  feeding  grounds  of  the  seal  during 
the  summer  stay  upon  the  islands,  and  to  which  the  cows  are  continu- 
ally going  and  coming,  are  to  be  found  40  to  70  miles  south  of  St. 
George  Island. 


SUMMARY    OF   TIIK    EVIDKNCE. 


273 


G.  R.  TInglo,  in  the  saiiio  reitoit  cited,  says  the  seals  probably  go  20 
miles  out,  in  some  eases,  in  search  of  tbod. 

The  British  Commissioners,  in  this  exceptional  instance,  are  to  be  cred- 
ited not  only  with  having  been  diligent,  but  with  dischtsing  tin;  names  of 
the  persons  from  whom  information  was  obtained.  It  might  have  been 
desirable  that  these  statements  should  be  made  in  the  language  of  the 
fitosons  themselves.    However,  we  quote  it  as  it  is  given  us. 

Tingle,  in  section  312,  extends  the  feeding  area  from  20  miles,  which 
he  has  named  above,  to  30  or  even  40  miks  from  the  land.  Kedpath 
did  not  know  of  the  feeding  grounds,  but  believed  that  the  females  go 
from  10  to  15  miles  from  the  islands  for  the  puri)oseof  feeding.  I)ani(>l 
Webster  (whom  they  graciously  indorse  as  a  truthful  witness)  concurred 
with  Ryan,  and  expressed  the  opinion  that  when  feeding  in  the  autumn 
the  seals  went  00  miles  to  the  southtcard  of  ISt.  Oeorye  Islaml.  He  be- 
lieved that  there  was  a  fitcorite  feeding  ground  in  thai  vicinity,  imd 
stated  the  reasons  of  this  belief.  Mr.  Webster  is  a  reliable  and  intel- 
ligent witness,  who  has  frequently  been  quoted  by  the  American  Com- 
missioners. While  he  does  not  state  the  distance  as  being  more  than 
(iO  miles,  he  certainly  places  it,  with  other  reliable  witnesses,  sufliciently 
far  out  to  sea  to  enable  the  poachers  to  destroy  this  (ilass  of  seals.  It 
may  not  be  material  whether  the  distance  be  GO  or  100  miles;  when  the 
men  bent  upon  slaughtering  seals,  irrespective  of  condition  and  s^ex, 
have  discovered  the  feeding  grounds  of  the  mothers,  all  that  they  will 
ask  is  that  the  distance  be  sufficiently  great  to  secure  to  them  immu- 
nity in  their  destructive  work. 

Mr.  Fowler  stated  to  the  Commissioners  (Sec.  312)  that  ho  be- 
lieved that  there  was  a  favorite  feeding  ground  of  the  seal  about 
30  miles  off  the  northeast  point  of  St.  F'auls  Island.  Tliis  was  not 
from  personal  knowledge,  but  dependent  upon  statements  that  seals 
had  been  seen  in  abundance  there.  That  the  seals  caught  on  the  feed- 
ing grounds  must  be  females  is  the  conclusive  inference  from  the  state- 
ments and  argument  of  the  British  Commissioners  themselves.  They 
.state  that  all  seals  resorting  to  the  islands  seem  in  a  great  degree  to 
share  iu  a  common  abstinence,  and  assert  that  the  stomachs  of  even 
the  bachelor  seals  killed  upon  the  islands  are  found  void  of  food.  As 
all  the  authorities  cited  by  them  confine  themselves  to  the  females,  it 
is  worse  than  idle  to  argue  tliat  those  which  resort  to  the  feeding 
grounds  are  either  old  males  or  young  ones. 
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274 


Ai^O  JMENT   OF   TUE    UNITED   STATES. 


The  statement  is  attributed  to  natives  of  St.  Paul  that  the  females 
from  the  rookeries  went  only  3  or  4  miles  to  sea  and  always  returned  to 
their  young  on  shore  the  same  day  (Sec.  312).  A  statement  so  vague 
as  to  names  and  qualifications  hardly  deserves  notice.  It  may  be 
important,  however,  as  showing  that  the  natives  have  observed  that 
females  do  return  to  their  young  for  the  purpose  of  nursing  them. 

Mr.  Grebuitsky  did  not  agree  with  most  of  the  natives,  who  thought 
"  that  the  females  did  not  feed  during  this  period,"  but  stated  as  the 
result  of  his  own  personal  observation  and  long  experience  that  they 
went  out  to  sea  while  suckling  the  young,  but  not  further  than  half  a 
mile  or  a  mile  from  the  shore.  If  food  is  to  be  procured  so  near  the 
laud  by  the  mother,  it  may  be  that  when  she  was  seen  floating  or 
playing  in  the  water  near  the  shore  by  Mr.  Bryant,  and  then  return- 
ing occasionally  to  suckle  her  pup,  she  had  also  been  employed  upon 
the  more  profitable  nn'ssiou  of  securing  milk-producing  material. 

Snegilott"  thought  that  the  females  leave  their  young  for  several  days 
to  go  as  far  as  10  miles  from  land  to  feed,  while  Kluge,  the  agent  of  the 
Eussiau  Government  in  chsirge  of  the  Copper  Islands,  thought  that  the 
females  went  as  far  as  2,  3,  or  4  miles,  but  returned  to  the  rookery  every 
night. 

To  this  undigested  mass  of  information,  thus  unsatisfactorily  reported, 
the  magnanimous  admission  is  added  that  "it  is  certain  from  statements 
obtained  that  females  with  milk  are  occasionally  killed  at  sea  by  the 
pelagic  sealers  "  (Sec.  314). 

We  may  conclude  from  all  this  testimony  on  the  part  of  the  British 
Commissioners  that  the  seals  which  leave  the  rookeries  are  almost  ex- 
clusively, if  not  wholly,  female  seals,  nursing  their  young  and  seeking 
food,  and  that  they  proceed  to  great  distances  in  some  cases,  and  are 
found  in  feeding  grounds  which  may  be  liom  40  to  CO  miles  distant  from 
the  land.  It  now  remains  to  be  seen  Avhat  testimony  is  oflTered  on  the 
part  of  the  United  States  to  satisfy  the  judgment  and  conscience  of 
the  court  which  is  to  determine  this,  one  of  the  most  important  ele- 
ments in  the  conti'oversy. 

Assuming  all  the  parties,  who  have  given  the  information  to  the 
Commissioners  of  Great  Britain  and  to  the  United  States,  for  the  re- 
spective countries  to  testify  fairly  and  honestly,  it  is  elementary  that, 
where  positive  evidence  of  a  fact  is  presented  and  negative  evidence  on 
the  other  side,  the  positive  evidence  shall  be  credited;  otherwise  the 
effect  would  bo  to  stann)  ouc  party  with  perjury  because  what  he  is 


SUMMARY    OF    THE    EVIDENCE. 


275 


stated  to  bave  seen  or  said  or  Iieaid  or  done  was  unnoticed  or  unobserved 
by  the  witness  testifying  in  tlie  negative.  If,  therefore,  the  sworn  tes- 
timony of  reputable  persons  is  produced  extending  the  area  in  which 
the  female  seals  have  been  observed  in  quest  of  food,  preference  must 
be  given  to  them  rather  than  to  those  witnesses  whose  opportunities 
may  not  have  been  the  same  or  whose  powers  of  observation  may  not 
have  been  equal.  Where  witnesses  testify  2)ositivel!/  that  they  have  neen 
and  killed  seals  over  100  miles  from  land,  can  they  be  truly  said  to  be 
contradicted  as  to  the  fact  by  men  who  say  that  they  have  never  seen 
them  more  than  60  miles  from  the  shore? 

Peter  Anderson  (Appendix  to  Case  of  the  United  States,  Vol.  II,  p 
312),  a  seal-hunter,  agrees  with  Mr.  Webster,  who  is  quoted  by  the 
Lritish  Commissioners.    He  says: 

A  large  majority  of  the  seal  taken  on  the  coast  and  in  Bering  Sea 
are  cows  with  pup  in  the  Pacific  Ocean  and  with  milk  in  Bering  Sea. 
A  few  young  male  seal  are  taken  in  the  Xorth  Pjvcific  Ocean,  from  two 
to  three  years  old.  Have  never  taken  an  old  bull  in  the  North  Pacitic 
Ocean  in  ray  life.  A  few  yearlings  have  been  taken  by  me,  but  not 
many.  Used  no  discrimination,  but  killed  all  seals  that  come  near  the 
boats.  The  best  way  to  shoot  seal  to  secure  them  is  to  shoot  them  in 
the  back  of  the  head  when  they  are  asleep  with  their  noses  under  water. 
Have  never  known  any  seal  pups  to  be  born  in  the  water  nor  any  where 
else  in  Alaska  outside  of  the  Pribilof  Islands,  nor  have  I  ever  known 
fur-seal  to  haul  up  anywhere  on  the  land  excei)t  on  the  Pribilof  Islands. 
Have  taken  females  that  were  full  of  milk  00  miles  from  the  Pribilof 
Islands. 

John  Armstrong  (Appendix  to  Case  of  the  United  States,  Vol.  II,  p.  1), 

who  had  been  during  many  years  agent  of  the  Alaska  Commercial  Com- 
pany and  lived  for  the  whole  of  ten  years  upon  St.  Paul  Island,  observed 
that  very  few  seals  go  out  to  sea  to  feed  during  June,  July,  and  August, 
except  females  and  some  of  the  younger  seals.    He  adds: 

I  am  asked  whether  the  seals  copulate  in  the  water.  It  is  a  question 
that  is  often  discussed  at  the  island,  and  neither  the  scientific  observ- 
(M's  nor  the  unscientific  are  able  to  agree  about  it.  I  have  seen  seals 
ill  position  when  it  seemed  to  be  attempted,  but  doubt  whether  it  is 
effectually  accomplished.  If  it  were,  I  tliiiik  we  should  see  pups  some- 
times born  late  and  out  of  season,  but  such  is  not  the  case. 

Kerrick  Artomanoff  {ibid.,  p.  99)  worked  on  the  sealing  grounds 
tor  the  last  fifty  years.  His  deposition  is  well  worth  reading.  It 
may  be  found  «t  page  99.  He  accounts  for  the  decrease  in  the 
number  of  seals  since  1874  by  the  destruction  of  the  females.  He 
states  that  in  1887  ^nd  1891  the  rookeries  werecoveretl  with  dead  pups. 
Ill  his  sixty- seven  years'  residence  on  the  island  he  never  saw  anything 
like  it  before.    No  sickness  was  ever  known  among  the  pups  or  seals, 


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ARGUMENT   OP   THE    UNITED   STATES. 


and  he  had  never  seen  any  dead  pups  on  the  rookeries,  except  the  few 
killed  by  the  old  bulls  when  fighting  or  by  drowning  when  the  snrf 
washed  them  off  {ibid.,  p.  100).  He  states  that  four  or  live  days  after  the 
birth  of  the  pup  the  mother  seal  leaves  her  offspring  and  goes  away  in 
the  sea  to  feed,  and  when  the  pup  is  two  or  three  weeks  old  the  mother 
often  stays  away  flva  or  six  days  at  a  time. 

William  G.  Bennett  {ibid.,  p.  356)  had  been  a  seal-hunter  all  his 
life;  he  was  32  years  old  at  the  time  of  deposing.  He  had  hurled  the 
seal  with  spear  and  sometimes  with  a  shotg^in.  Most  of  the  seals  taken 
by  him  were  cows.  He  thought  that  the  cows  slept  more  and  are  more 
easily  approached.  The  sex  of  the  seal  not  being  ascertainable  in  the 
water,  ho  shot  everything  that  came  near  his  boat,  and  when  the  seal  is 
shot  dead  it  sinks  very  quick  and  is  hard  to  secure  under  those  condi- 
tions. He  also  agreed  with  the  other  witnesses  that  seals  were  decreas- 
ing in  number  very  fast.,  and  he  attributed  this  to  the  indiscriminate 
killing  in  the  water. 

Joseph  Stanley-Brown,  a  geologist,  whose  testimony  on  other  points 
has  heretofore  been  given  attention,  says : 

For  the  first  few  days,  and  possibly  for  a  week  or  even  ten  days,  the 
female  is  able  to  nourish  her  young  or  offspring,  but  she  is  soon  com 
polled  to  seek  the  sea  for  food,  that  her  voracious  young  feeder  may  be 
properly  nourished,  and  this  seems  to  be  permitted  on  the  part  of  the 
male  though  under  protestation.  The  wholo  physical  economy  of  the 
seal  seems  to  be  arranged  for  alternate  feastii:g  and  fasting,  and  it  is 
probable  that  in  tlie  early  days  of  its  life  the  young  seal  might  be 
amply  nourished  by  such  milk  as  the  motlier  might  herself  afford 
without  resorting  herself  to  the  sea  for  food. 

John  G.Cantwell  {ibid.,  p.  408),  second  lieutenant  in  the  United  States 
Revenue  Marine,  had  been  on  duty  in  Behring  Sea  during  the  years 
1884,  1885,  1880,  and  1891.  He  had  paid  particular  attention  to  the 
seals  and  wlienever  opportunity  offered  had  visited  the  rookeries  for 
the  purpose  of  photographing  and  sketching  the  animal,  etc.  He  had 
boarded  a  large  number  of  vessels  fitted  out  as  sealers  and  engaged  in 
sealing,  and  had  conversed  with  the  masters  and  crews  on  the  subject 
of  pelagic  sealing.    This  is  his  testimony: 

From  information  gathered  from  these  and  other  sonroes,  and  by  com 
parison  of  testimony  given  by  the  seal  hunters,  would  say  that  at  least 
60  per  cent  of  seals  killed  or  wounded  escape  and  are  n&ver  recovered, 
and  that  75  per  cent  of  seals  shot  in  the  North  Pacific  Ocean  are  fe- 
males heavy  with  young,  and  that  80  per  cent,  of  seals  shot  in  Behring 
Sea  from  July  1  to  Sei)tember  15  are  females,  most  of  which  have 
given  birth  to  their  young,  and  are  mostly  caught  while  feeding  at  vari' 
ous  distances  from  laud. 


SUMMARY   OP   THE   EVIDENCE. 


277 


Oapt.  Oarthcut  (ibid.,  p.  404),  a  master  niariaer,  engaged  in  hunting 
the  fur-seals  for  10  years,  extending  from  1877  to  1887,  during  the  latter 
part  of  the  time  in  Bering  Sea,  spealcs  on  his  personal  knowledge,  and 
makes  a  valuable  contribution  to  the  knowledge  which  we  have  upon 
the  subject.  One  of  the  resisons  r-hich  he  assigns  for  the  great  shiughter 
of  female  seals  is  that  maturity  makes  them  tame  and  easily  approach- 
able.   He  says: 

About  80  per  cent  of  the  seals  I  caught  in  the  Behring  Sea  were 
mothers  in  milk,  and  were  feeding  around  the  tishiiig  banks  just  north 
of  the  Aleutian  Islands,  and  1  got  most  of  my  seals  from  50  to  250 
miles  from  the  seal  islands.  I  don't  think  I  ever  sealed  within  25  miles 
of  the  Pribilof  Islands.  They  are  very  tame  after  giving  birth  to 
their  young,  and  are  easily  approached  by  the  hunters.  When  the 
females  leave  the  islands  to  feed,  they  go  very  fast  to  the  fishing 
banks,  and  after  they  get  their  food  they  will  go  asleep  on  the  waters. 
That  is  the  hunter's  great  chance.  1  think  we  secured  more  in  propor- 
tion to  the  number  killed  than  we  did  in  the  Jforth  Pacific.  I  hunted 
with  shotgun  and  rifle,  but  mostly  with  shotgun.  Seals  were  not 
nearly  as  numerous  in  1887  as  they  were  in  1877,  and  it  is  my  belief 
that  the  decrease  in  numbers  is  due  to  the  hunting  and  killing  of 
female  seals  in  the  water.  I  do  not  tliink  it  possible  for  seals  to  exist 
for  any  length  of  time  if  the  present  slaughter  continues.  The  killing 
of  the  female  means  death  to  her  born  or  unborn  pup,  and  it  is  not 
reasonable  to  expect  that  this  immense  drain  on  the  herds  can  be  con- 
tinued without  a  very  rapid  decrease  in  their  numbers,  and  which 
practically  means  extermination  within  a  very  few  years. 

Christ  Clausen  {ibid.,  p.  319),  a  master  mariner,  was  engaged  in 
seal  hunting  as  mate  of  the  British  schooner  C.  H.  Tupper,  in  1889. 
He  resides  at  Victoria,  British  Columbia,  and  also  was  navigator  in 
the  British  schooner  Minnie.  His  testimony  is  worth  reproducing 
somewhat  extensively.  Unless  willful  perjury  be  attributed  to  him, 
his  testimony,  based  on  actual  observation  and  experience  in  the  busi- 
ness of  slaughtering  seals,  should  be  accepted  as  conclusive  on  several 
of  the  points  under  consideration: 

The  Indian  hunters,  when  they  use  spears,  saved  nearly  every  one 
they  struck.  It  is  my  observation  and  experience  tliat  an  Indian,  or  a 
white  hunter,  unless  very  expert,  will  kill  and  destroy  many  times 
more  than  he  will  save  if  he  uses  firearms.  It  is  our  object  to  take 
them  when  asleep  on  the  water,  and  any  at  tempt  to  capture  a  breach- 
ing seal  generally  ends  in  tkilure.  The  seals  we  cat<;h  along  the  coast 
are  nearly  all  pregnant  females.  It  is  seldom  we  capture  an  old  bull, 
and  what  males  we  get  are  usually  young  ones.  I  have  frequently 
seen  cow  seals  cut  open  and  the  unborn  pups  cut  out  of  them  and  they 
would  live  for  several  days.  This  is  a  frequent  occurrence.  It  is  my 
experience  that  fully  85  per  cent  of  the  seals  I  took  in  Behring  Sea 
were  females  and  bad  given  birth  to  their  pups  and  their  teats  would 


278 


AROITMENT   OF   THE    UXITED    STATES. 


in 


I'- 
ll 

t 


1)0  full  of  milk.  1  li  ivd  tini^lit  saiU  of  this  kind  100  to  150  in  ilea  from 
I'ribilof  IsliuulH.  It  is  my  opinion  that  spuars  should  be  used  in  hunt- 
ing seals,  and  if  they  are  to  be  kept  from  extermination  the  shotgun 
should  be  discarded. 

Fetor  Collins,  also  engaged  in  sealing  a«  a  sailor,  testified  as  to  the 
manner  of  shooting  the  seals  {ibid.,  p.  413.  Fully  three-fourths  of  the 
seals  shot  in  the  North  Pacific,  he  says,  were  females  with  young.  He 
swears  that  he  has  seen  mothers  with  their  breasts  full  of  milk  killed  100 
miles  or  more  from,  the  seal  islands.  He  knows  that  they  go  great  dis- 
tances for  food.  His  testimony  is  that  of  a  practical  man  who  evidently 
entertained  no  prejudice  on  the  subject  of  killing  the  mothers  with 
breasts  full  of  milk.  He  was  apprehensive,  however,  that  his  business 
would  be  destroyed.    He  says: 

There  were  not  nearly  as  many  seals  to  be  found  in  1889  as  there 
were  in  1888.  I  think  the  <lecre;»se  wjvs  caused  by  the  great  destruction 
of  females  killed  in  the  sea  by  the  hunters,  and  if  somctiiing  is  not  done 
to  protect  them  from  slaughter  in  the  North  Pacific  and  Behriug  Sea, 
they  will  all  be  gone  in  a  few  years. 

Gapt.  Coulson  {ibid.,  pp.  414-416),  of  the  United  States  Revenue 
Marine,  makes  a  very  interesting  deiK>sition.  His  experience  was 
practical  and  extensive.    He  says: 

In  company  with  Special  Agent  Mnrray,  Capt.  Hooper,  and  Slngineer 
Brerton,  of  tlie  Corwin,  I  visited  the  reef  and  Gobatch  rookeries,  St. 
Paul  Island,  in  August,  1891,  and  saw  one  of  the  most  i)itiable  sights 
that  I  have  ever  witnessed.  Thousands  of  dead  and  dying  pups  were 
scattered  over  the  rookeries,  while  the  shores  were  lined  vvith  emivciated, 
hungry  little  fellows,  with  their  eyes  turned  toward  the  sea,  uttering 
plaintive  cries  for  their  mothers,  which  were  destined  never  to  return. 
Numbero  of  them  were  opened,  their  stomachs  examined,  and  the  fact 
revealed  that  starvation  was  the  cause  of  death,  no  organic  disease 
being  apparent. 

The  great  number  of  seals  taken  by  hunters  in  1891  was  to  the  west- 
ward and  northwestward  of  St.  Paul  Island,  and  the  largest  number 
of  dead  found  that  year  in  rot>keries  situated  on  the  west  side  of  the 
island.  This  fact  alone  goes  a  great  way,  in  my  opinion,  to  confirm  the 
theory  that  the  loss  of  the  mothers  was  the  cause  of  mortality  among 
the  young. 

After  the  mother  seals  have  given  birth  to  their  young  on  the  islands, 
they  go  to  the  water  to  feed  and  bathe,  and  /  have  observed  them,  not 
only  around  the  island  but  from  SO  to  100  miles  out  at  sea. 

In  different  years  the  feeding  grounds  or  the  location  where  the 
greater  number  of  seals  are  taken  by  poachers  seem  to  differ:  in  other 
words,  the  seals  fretpiently  change  feeding  grounds.  For  instance,  in 
1L87,  the  greatest  number  of  seals  were  taken  by  poachers  between 
Unamak,  Akatan  Passes  and  the  seal  islands,  and  to  the  southwest 
ward  of  St.  George  Island.  In  1889,  the  catching  was  largely  done  to 
the  southward  and  eastward,  in  many  cases  from  SO  to  150  miles  dis- 
tant from  the  seal  islands.    In  the  season  of  1890,  to  the  southward 


on  tL. 


swim, 
water 
their  p 
distant 
distant 
1st  of 
which 
and  ev 
homes, 
in  the 
p.  23). 

Jam 
-and  pi 


SUMMARY    OP   THE   EVIDENCE 


279 


and  westward,  also  to  northwest  and  northeast  of  tlie  islands,  show- 
ing that  the  seals  have  been  scattered.  The  setison  of  1801,  the  great- 
est nuJiber  were  taken  to  northward  and  westward  of  St.  Paul,  and  at 
eariouo  distances  from  25  to  150  miles  away. 

The  testimony  of  such  a  witness,  speaking  of  his  knowledge,  declar- 
ing upon  his  oath  that  he  had  seen  females  feeding  8()  to  100  miles  from 
the  Pribilof  Islands,  ought  to  outweigh  the  negative  and  loose  state- 
ments of  any  conceivable  number  of  natives  or  other  informants  upon 
whom  the  British  Commissioners  have  relied. 

Charles  Challall  {ibid.,  p.  410),  a  sealer  who  had  been  sealing  up  the 
coavSt  and  in  Bering  Sea  three  seasons,  testified  as  follows: 

Most  of  the  seals  we  killed  up  the  coast  were  females  heavy  with 
pup.  I  think  nine  out  of  every  ten  were  females.  At  least  seven  out 
of  every  eight  seals  caught  in  the  Bering  Sea  were  mothers  in  milk. 
The  vessels  I  went  out  in  had  from  four  to  six  boats  each.  Each  boat 
liad  three  men,  a  hunter  and  two  pullers.  The  average  hunter  would 
get  one  out  of  ev:ny  three  that  he  shot;  a  poor  hunter  not  nearly  so 
many.  There  are  twenty-one  buckshots  to  a  shell.  I  think  a  great 
many  seals  are  wounded  by  hunters  that  are  not  taken.  The  gunshot 
wounds  more  seals  than  the  rifle.  I  think  the  aim  of  the  hunter  is  to 
kill  the  seal  rather  than  to  wound  it.  Wiien  they  are  in  schools  sleep- 
'  ing  we  get  a  good  many.  We  did  not  get  as  many  we  shot  at  in 
the  Bering  Sea  as  we  did  on  the  coast.  If  we  got  one  out  of  every 
thrpe  that  we  wounded  in  the  Bering  Sea  we  were  doing  pretty  well. 
I  do  not  know  of  any  place  where  the  seals  haul  up  on  this  coast  except 
on  tL^  :eal  islands. 

Mr.  W.  H.  Dall  (upon  whose  manuscript  note,  said  to  have  been  sup- 
plied to  Prof.  Allen,  the  British  Commissioners  rely  to  show  coition  in 
the  water).  He  testifies  to  having  seen  seals  in  the  water  of  Bering 
Sea  100  miles  or  more  from  the  Islands.  His  testimony,  too,  seems  con- 
clusive, if  he  is  a  reliable  witness.    This  is  his  language: 

The  Pribilof  Islands  are  the  chosen  home  of  the  fur-seal  {Callorhinus 
ursimis).  Upon  these  islands  they  are  born;  there  they  first  learn  to 
swim,  and  more  than  half  their  life  is  spent  upon  them  and  in  the 
water  adjacent  thereto.  Here  they  give  birth  to  their  young,  breed,  nurse 
their  pups,  and  go  to  and  from  their  feeding  grounds,  ichich  may  be  miles 
distant  from  the  islands.  I  hare  seen  seals  in  the  waters  oj  Bering  Sea 
distant  100  miles  or  more  from  the  islands  at  various  times  between  the 
1st  of  July  and  October.  These  seals  tcere  doubtless  in  search  of  food, 
which  consists,  according  to  my  observation,  of  fish,  squid,  crustaceans, 
and  even  mollusks.  Upon  the  approjich  of  winter  the  seals  leave  their 
homes,  influenced  doubtless  by  the  severity  of  tlie  climate  and  decrease 
in  the  food  supply  (Appendix  to  Case  of  the  United  States,  ol.  II, 
p.  23). 

•Tames  Henry  Douglas  {ibid.,  p  419),  was  by  occupation  a  master 
and  pilot  of  vessels,  and  had  had  long  experience  sailing  iu  the  North 


m 


'Ht 


•  ■':')}■'  "I' 


till 


280 


ARGUMENT  OF   THE   UMTED   STATES. 


Pacific  and  Bering  Sea;  liad  gone  to  tlic  seal  islands  in  the  latter  sea 
over  twenty  years  ago,  and  been  there  many  times  subsequently  while 
in  the  employ  of  the  Government.  He  testifies  that  his  observation 
and  information  agreed  with  that  of  many  other  witnesses.    He  says: 

My  information  and  observation  is  that  a  very  large  proportion  of 
those  killed  along  the  coast  and  at  sea  firom  Oregon  to  the  Aleutian 
Islands  are  female  seals  with  pups;  I  think  not  less  than  95  ])er  cent. 
The  proportion  of  female  seals  killed  in  the  ISering  Sea  is  equally  large, 
but  the  destruction  to  seal  life  is  much  greater  owing  to  the  fact  that 
when  a  mother  seal  is  killed  her  suckling  pup  left  at  the  rookery  also 
perishes.  Impregnation  having  also  tiiken  place  before  she  left  the 
rookery  in  search  of  food,  tlie  ftetus  of  the  next  year's  birth  is  likewise 
destroyed.  I  also  found  tlmt/emales  after  giving  birth  to  their  young  at 
the  rookeries  seek  tlie  codfish  banks  at  various  points  at  a  distance  of  from 
40  to  125  miles  from  the  islands  for  food,  and  are  frequently  absent  one 
or  more  days  at  a  time,  when  they  return  to  find  their  young. 

I  have  noticed  that  the  females  when  at  sea  are  less  wild  and  dis- 
trustful than  the  bachelor  seals,  and  dive  less  quickly  in  the  presence 
of  the  hunter.  After  feeding  plentifully  or  when  resting  after  heavy 
weather  they  appear  to  fall  asleep  upon  the  surface  of  the  water.  It  is 
theti  they  become  an  easy  target  for  the  hunters. 

George  Dishow,  of  Victoria,  British  Columbia,  was  by  occupation  a 
seal  hunter  and  pursued  that  business  six  years  {ibid.,  p.  323. 

I  use  a  shotgun  exclusively  for  taking  seal.  Old  hunters  lose  but  very 
few  seals,  but  beginners  lose  a  great  many.  1  use  the  Parker  shotgun.  A 
large  proportion  of  all  seals  taken  are  females  with  pup.  A  very  few 
yearlings  are  taken.  1  never  examined  them  as  to  sex.  But  very  few 
old  bulls  are  taken,  but  five  being  taken  out  of  a  total  of  900  seals 
taken  by  my  schooner.  Use  no  discrimination  in  killing  seal,  but  shoot 
everything  that  comes  near  the  boat  in  the  shape  of  a  seal.  Hunters 
shoot  seal  in  the  most  exposed  part  of  the  body.  Have  never  known 
any  pups  to  be  born  in  the  water,  nor  on  the  land  on  the  coast  ot 
Alaska  anywhere  outside  of  the  Pribilof  Islands.  Have  never  known 
fur-seal  to  haul  up  on  the  land  anywhere  on  the  coast  except  on  the 
Pribilof  Islands.  Most  of  the  seals  taken  in  Bering  Sea  are  females. 
Have  taken  them  70  miles  from  the  islands  that  tcerefull  of  milk.  I  think 
a  slosed  season  should  be  established  for  breeding  seal  from  January 
lut  to  August  15th  in  the  North  Pacific  Ocean  and  Bering  Sea. 

George  Fairchild  {ibid.,  p.  423),  made  a  sealing  voyage  to  the  North 
Pacific  Sea  as  sailor  on  the  Sadie  Clyde,  sailing  from  Victoria  on  the 
10th  of  April,  1888.  They  went  north  to  the  Bering  Sea,  sealing  all  the 
way  up,  and  got  110  seals  before  entering  the  sea: 

"  Most  of  them, "  he  says,  "  were  cows,  nearly  all  of  which  had  pups  in 

them.     We  took  some  of  the  pups  alive  out  of  the  bodies  of  the  females. 

We  entered  the  Bering  Sea  May  25,  and  we  got  704  seals  in  there,  the 

greater  quantity  of  which  were  females  with  their  breasts  full  of  milk,  a 

fact  which  I  know  by  reason  of  having  seen  the  milk  flow  on  tite  deck  when 


SUMMARY    OP   THK    KVIDENCE. 


^81 


fhcif  trerc  being  sl-iniicd.  We  bail  5  boats  on  board,  eaob  l)oat  bavit)<;a 
liuiiter,  boat  puller,  and  steerer.  We  used  Hbotguns  and  rifles.  We 
{jot  one  out  of  every  5  or  6  tbat  wo  killed  or  Avounded.  We  wounded 
a  arosit  many  tbat  we  did  not  ffet.  We  caught  them  from  10  to  50  miles 
oft'  the  seal  islands. " 

This  18  the  sportsmanlike  method  of  hunting  seals  of  which  tlic  British 
Commissioners  speak  in  terms  of  undisguised  admiration! 

Samuel  Falconer  (ibid.,  p.  105),  deputy  collector  of  (ajstoms  iu  1868 
and  1880,  the.i  purser  ou  board  the  steamer  CouHtantine,  was  also 
in  charge  of  St.  Paul  Island  several  years.  It  was  a  part  of  his 
duty  to  make  a  very  careful  and  full  study  of  seal  life.  It  was  his 
opinion  thut  i(  a  pup  lost  its  mother  by  any  accident  it  would  certainly 
die  by  starvution.  When  the  young  seal  are  6  or  8  weeks  of  age 
their  mothers  force  them  into  the  water  and  teach  them  to  swim.  After 
repeated  trials  the  pup  learns  to  swim,  and  from  that  time  on  spends  a 
great  deal  of  time  in  the  water,  but  still  the  greater  portion  of  these 
first  months  of  its  life  are  spent  on  land  sleeping  and  nursing. 

The  cow,  after  bringing  forth  her  young,  remains  on  the  rookery 
until  again  fertilized  by  the  bull,  which  is,  I  l)elieve,  within  two  weeks. 
Atter  the  fertilization  she  is  allowed  to  go  to  and  from  the  water  at 
will  in  search  of  food,  which  she  must  obtain  so  she  can  nurse  her  pup. 
She  goes  on  these  feeding  excursions  sometimes,  I  believe,  40  or  more 
miles  from  the  islands,  and  as  she  swims  with  great  rapidity,  covers  the 
distance  in  a  short  time.  She  may  go  much  farther,  for  I  have  known 
a  cow  to  be  absent  from  her  pup  for  two  days,  leaving  it  without 
nourishment  for  this  period.  This  shows  how  tenacious  of  life  a  young 
seal  is,  and  how  long  it  can  live  without  sustenance  of  any  sort.  The 
3-year-old  male  has  meanwhile  landed  on  the  hauling  ground  and 
is  now  of  the  most  available  age  to  kill  for  his  pelt. 

John  Fratis  {ibid.,  p.  108)  was  of  opinion  that  the  cows  were  killed 
by  the  hunters  when  they  go  out  in  the  sea  to  feed,  and  the  pups  are 
left  to  die  and  do  die  on  the  islands.    He  says: 

The  pups  are  born  soon  after  the  arrival  of  the  cows,  and  they  are 
lielpless  and  can  not  swim,  and  they  would  drown  if  put  into  the  water. 
The  pups  have  no  sustenance  except  what  the  cows  furnish,  and  no 
cow  suckles  any  pup  but  her  own.  The  pups  would  suck  any  cow  if 
the  cow  would  let  them. 

After  tlie  pup  is  a  few  days  old  the  cow  goes  into  the  sea  to  feed,  and  at 
first  she  will  only  stay  away  for  a  few  hours,  but  as  the  pup  grows 
stronger  she  will  stay  away  more  and  more  until  she  will  sometimes  be 
away  for  a  tceek. 

William  Frazer  gives  his  experience  as  a  sealer.  The  hunters  use 
shotguns,  he  says  {ibid.,  p.  427),  and  got  about  one  out  of  every  six  they 
shot  at  or  killed,  aud  soinotimes  they  got  none.    The  great  majority  of 


rn 


&     I  hii 


»v      I 


282 


ARGUMENT  OP  THE   UNITED  STATES. 


tliein  were  femnles.  Most  of  the  females  killed  have  unborn  pups  or 
werecows  in  the  milk.  They  dirt  not  kill  any  on  the  Island  because  they 
never  went  in  close  enough.  He  testifles  positively  that  "  we,"  meau- 
iu}?  his  companions  and  himself  on  the  Charles  Wilson, ''  killed  females 
giving  milk  more  than  100  miles  from  the  seal  islands.  Most  of  the 
seals  sunk  or  dove  out  of  sight  when  killed  or  wounded,  and  a  great 
many  of  them  we  could  not  got."  On  one  occasion  he  got  600  seals. 
He  does  not  know  whether  it  was  on  the  American  side  or  not.  They 
were  almost  all  females.  He  noticed  when  he  skinned  them  that  they 
were  females  in  milk,  as  the  milk  would  run  from  their  breasts  on  to 
the  decks.  He  concurs  with  the  other  witnesses  as  to  the  diminution 
in  the  number  of  seals. 

Norman  Hodgson  {ibid.,  p.  366)  observed  nursing  cotes  from  60  to  80 
miles  front  the  Pribilof  Islands,  where  they  were  ranging  to  feed. 

I  do  not  think  it  possible  for  fur-seals  to  breed  or  copulate  in  water 
at  sea  and  never  saw  nor  heard  of  the  action  taking  place  on  a  patch 
of  floating  kelp.  I  have  never  seen  a  young  fur-seal  pup  of  the  same 
season's  birth  in  the  water  at  sea  nor  on  a  patch  of  floating  kelp  and 
in  fact  never  knew  of  their  being  born  anywhere  save  on  a  rookery. 
I  have,  hotcever,  cut  open  a  gravid  cow  and  taken  the  young  one  from  its 
mother's  womb,  alive  and  crying.  I  do  not  believe  it  possible  for  a  fur- 
seal  to  be  successfully  raised  unless  born  and  nursed  on  a  rookery.  I 
have  seen  fur-seals  resting  on  patches  of  floating  kelp  at  sea,  but  do 
not  believe  they  ever  haul  up  for  breeding  purposes  anywhere  except 
on  rookeries. 


« 


Chad  George  (tfttrf.,  p.  365)  27  year  sold  and  a  seal  hunter  since  he  was 
a  mere  boy,  has  been  engaged  in  the  killing  of  seals  and  speared  every- 
thing that  came  near  his  boat,  regardless  of  sex.  He  had  hilled  seals 
200  miles  from  the  Pribilof  Islands  that  were  full  of  milk. 

H.  A.  Gliddon  {ibid.,  p.  210),  stated  that  the  females  during  the  entire 
sealing  season  are  going  and  coming  to  and  from  the  water  for  the  pur- 
pose of  feeding,  and  in  his  opinion  while  the  females  are  thus  going  to 
and  from  the  feeding  ground  and  through  the  Aleutian  passes  they 
are  intercepted  and  shot  by  open- sea  sealers. 

Gapt.  E.  M.  Greenleaf,  a  resident  of  Victoria,  British  Columbia,  a  sea 
faring  man,  holding  a  commission  as  master  mariner,  captured  at  one 
time  sixty-three  seals,  all  of  whichwere  females  and  all  were  pregnant  {ibid., 
p.  324).  He  was  informed  by  conversation  with  Bering  Sea  seal  hunters 
tuat  they  killed  seal  cows  20  to  200  miles  from  the  breeding  grou  nds,  and 
that  these  cows  had  evidently  given  birth  at  a  recent  time  to  young. 
As  to  the  proportions  of  seals  fired  at  and  killed  or  wounded,  it  is  his 


SUMMARY   OF   THE    EVIDENCE. 


283 


jinlginent  tliat,  taking  the  inn  of  hunters,  good  and  bad,  the  best  get 
about  50  per  cent  of  tho8e  Hhot  at,  and  the  poorest  not  more  than  one 
oat  of  fifteen. 

Cumulative  testimony  to  this  effect  mifrht  be  cited  to  the  extent  of 
wearisome  repetition,  but  if  the  learned  Arbitrators  shouM  desire  to 
pursue  the  subject  as  far  as  the  evidence  will  permit,  we  give  below 
references  to  the  testimony  to  be  found  in  the  Appendix  and  not  sj)e- 
cially  quoted. 

We  submit  that  it  is  absolutely  conclusive  unless,  as  we  have  sug- 
gested before,  for  some  unknown  reason  it  should  be  rejected  us  inten- 
tiona/y  and  criminally  false. 

Arthur  Griffin  {ibid,,  p.  325)  captured  females  from  20  to  200  miles 
from  the  rookeries. 

James  Griffin  {ibid.,  p.  433)  killed  female  seals  full  of  milk  90  miles 
from  the  inlands. 

Martin  Hannon  {ibid.,  p.  445)  killed  them  full  of  milk  100  miles  from 
the  seal  islands. 

James  Harrison  {ibid.,  p.  326)  caught  200  seals  in  the  Behring  Sea 
about  the  1st  of  June,  mostly  mothers. 

James  Hayward  {ibid.,  p.  327)  caught  them  IfiO  miles  from  the  shore 
and  skinned  them  when  their  breasts  were  full  of  milk.  He  says  that  they 
travel  very  fast  and  go  a  long  way  to  feed. 

J.  Johnson  {ibid.,  p.  331)  killed  female  seals  full  of  milk  75  miles  from 
the  island;  used  a  shotgun  and  killed  everything. 

Louis  Kimmel  {ibid.,  p.  173)  had  observed  them  at  least  20  miles  from 
the  islands. 

Andrew  Laing  {ibid.,  p.  334)  had  caught  them  75  to  100  miles  from 
the  island  and  in  skinning  them  the  milk  would  run  out  of  the  teats  of  the 
females,  they  having  given  birth  recently  to  young  on  the  islands. 

William  H.  Long  {ibid.,  p.  457)  killed  mothers  in  milk  all  the  way  from 
10  to 200  miles  offshore. 

Thomas  Lowe  {ibid.,  p.  371)  in  1889  hunted  in  the  Bering  Sea  from 
80  to  100  miles  off  the  Pribilof  Islands.  Two-thirds  of  his  catch  were 
cows  in  milk. 

Thomas  Lyons  {ibid.,  p.  460)  about  the  26th  or  28th  of  June  went 
into  the  Bering  Sea  and  caught  389  seals,  nearly  all  of  which  were 
mothers  in  milk.  He  knows  it  as  he  saw  the  milk  flow  on  the  deck 
while  skinning  them. 

William  M.  McLaughlin  {ibid.,  p.  461)  killed  them  50  to  60  miles  off 
shore,  most  of  them  with  milk. 


<<i«:, 


fill,) 

I 


284 


ARnUMRNT   OP   THK   UNITED   STATES. 


;i!it^ 


r' 


■ ;.: 


Alexa?u1er  MtJiCaii  (ilnd.,  p.  4.'{0)  killed  tln'in  a«  far  off  as  ISO  mile$ 
off  the  land.    Tliey  wore  mothern  with  yimny. 

Daniel  McLean  {iUd.^  p.  444)  killed  mothers  all  tbe  way  from  20  to  66 
mileH  off  St.  Geor(;e  and  St.  Paul. 

Robert  H.  McManuH  («6td.,  p.  3.35),  a  renidcnt  of  Victoria;  by  profes 
nion  a  newnpaper  correRpondent ;  went  for  IMh  health  on  a  sealing  expedi- 
tion. His  deix»Hition  is  exceptionally  minute  and  interesting.  The  men 
on  his  ship  (Schooner  Otto)  killed  them  at  a  distance  of  200  miles  from  the 
rookeries.  Over  tbroo-fouiths  of  iiivS  catch  were  cows  in  milk.  Jndged 
from  the  nnmber  of  shots  flred  that  it  took  about  one  hundred  to 
secure  one  seal;  one  day  there  was  a  total  catch  of  seventeen  seals; 
greater  proportion  were  in  milk;  horrid  sight;  could  not  stay  the 
ordeal  out  till  all  were  flayed. 

Thomas  Madden  {ibid.,  p.  403)  has  spent  or  had  been  going  to  the 
Boring  Sea  over  12  years,  which  he  entered  about  June.  Most  of  the 
seals  killed  were  cows  and  he  saw  the  milk  run  out  of  their  breasts 
on  (he  deck  as  they  were  being  skinned. 

G.  E.  Miner  {ibid.,  p.  400)  killed  seals  with  milk  250  miles  from  the 
Pribilof  Islands. 

Thomas  F.  Morgan  {ibid.,  p.  00)  says  that  the  female  goes  40  miles  or 
even  farther  from  the  island. 

ISiles  Nelson  {ibid.,  p.  409)  swears  that  he  Jms  killed  mothers  in  milk  100 
miles  or  more  from  the  island. 

Dr.Noyes  {ibid.,  p.  82),  resident  physician  and  sometimes  schoolmaster 
on  the  islands,  says  that  the  female  mother  goes  a  distance  of  from  40  to 
200  miles  from  the  island  to  feed.  His  deposition  is  very  full  and  inter- 
esting. It  is  valuable  as  shedding  light  on  most,  if  not  all,  of  the  ques- 
tions here  involved. 

John  Olsen  {ibid.,  p.  471)  swears  that  he  shot  twenty-eight  himself  from 
60  to  150  miles  off  the  seal  islands.     Tliey  were  mothers  full  of  milk. 

Other  witnesses  estimate  the  distance  at  00  miles,  100  miles,  etc. 
See  T.  F.  Byan  {ibid.,  p.  176),  0.  M.  Scammou  {ibid.,  p.  473),  Adolphus 
Sayres  {ibid.,  p.  473),  L.  G.  Shepard  {ibid.,  p.  187),  William  H.  Smith 
{ibid.,  p.  478),  Z.  L.  Tanner  {ibid.,  p.  374). 

Oapt.  Tanner,  lieutenant-commander  in  the  United  States  Navy, 
makes  a  deposition  which  is  entitled  to  particular  consideration.  The 
following  is  a  short  extract : 

Seals  killed  in  Bering  Sea  after  the  birth  of  pups  are  largely  mother 
seals,  and  the  farther  they  are  found  from  tlie  islands  the  greater  the  per- 


SUMMARY   OF   THE   EVIDENCE. 


285 


eentaye  will  be.  The  reason  for  tliis  seoming  pnrndox  Ih  very  aimplo. 
The  young  nialeH,  having  no  family  roHpondtibilitieM,  vim  att'onl  to  hunt 
nearer  home,  where  food  can  be  found  if  suHlcient  time  is  devoted  t<o  tlie 
search.  The  mother  docs  not  leave  her  young  except  when  necesHity 
(»)mpel8  her  to  seek  food  for  its  Hustenancu.  She  can  not  alford  to  waste 
time  on  feeding  grounds  already  occupied  by  younger  an<l  more  activo 
feeders;  hence  she  makes  the  best  of  her  way  to  richer  tiehls  farther 
away,  gorges  herself  with  food,  then  seeks  rest  ■  '  a  quiet  nap  on  the 
surface.  iTndcr  these  circumstances  she  sleeps  st  i<  tlly,  and  becomes 
an  easy  vi<;tim  to  the  watchful  hunter. 

A  double  waste  occurs  when  the  mother  seal  is  killed,  as  the  pn])s 
will  surely  starve  to  death.  A  mother  se"  Aill  ^ive  sustenance  to 
no  pup  ^>ut  her  own.  I  saw  sad  evidences  ot  this  '.vast  on  St.  Paul 
last  >CuV.n,  where  large  numbers  of  pups  were  lying  nbout  the  rookeries, 
where  they  had  died  of  starvation. 

Adolph  W.  Thompson  (ibid.,  p.  486)  killed  lemalcs  in  milk,  although  ho 
never  went  nearer  to  the  island  than  35  or  30  miles. 

Michael  White  {ibid.,  p.  480)  killed  seals  in  milk  not  lesn  than  100  to 
300  miles  from  the  islaud. 

William  H.  Williams  {ibid.,  p.  93),  United  States  Treasury  agent  in 
charge  of  the  seal  islands  in  Bering  Sea,  states  that  it  is  a  well-known 
fact  substantiated  by  the  statements  of  reputable  persons  who  have 
been  on  sealing  vessels  and  seen  them  killed  300  miles  or  more  from  the 
islands,  and  who  say  that  they  have  seen  the  decks  of  the  vessels  slippery 
of  milk  flowing  from  the  carcasses  of  the  dead  females.  Ee  alludes  to 
the  thousands  of  dead  pups  left  on  the  rookeries  starved  to  death  by 
the  destruction  of  their  mothers  as  conclusive  evidence  of  the  destruc- 
tion and  havoc  wrought  by  the  pelagic  seal  hunters. 

If  this  cumulative  and  unimpeachable  evidence  does  not  establish  the 
fact  which  ^z  have  undertaken  to  prove,  we  must  despair  of  satisfying 
this  High  Tribunal  or  any  other  tribunal  of  the  correctness  of  our 
statements.  Wo  submit,  howevc^-  that  it  is  more  than  made  out — that 
it  must  be  taken  as  a  fact  in  the  discussion  of  this  case — that  the  cows, 
while  suckling,  go  to  sea  for  food ;  that  they  t.  'ivel  long  distances,  some- 
times as  great  as  200  miles;  and  that  during  such  excursions  they  are 
ruthlessly  slaughtered  by  pelagic  sealers,  in  many  cases  without  profit, 
as  they  sink  and  are  irretrievably  lost.  The  sickening  details,  abund- 
antly liirnished  by  the  witnesses,  sufficiently  characterize  the  business, 
and  justify  the  harshest  expressions  of  condemnation.  The  slaughter 
thus  described  constitutes  a  crime,  for  it  violates  the  most  common  in- 
stincts of  our  nature  and  woul"  be  punished  by  the  laws  of  every  civi- 
lized nation,  if  jurisdiction  could  only  be  acquired  over  the  wrongdoers. 
And  yet  the  Commissioners  for  Great  Britain  undertake  to  justify  this 


'ft'  Cjjil 


■     lift 


I  i.'n 


i'  I,*  ■  I; 


,,.;' 


28G 


ARGUMENT    OP    THE    UNITED    STATES. 


pi'at'tice  for  its  sportsmau-like  qualities,  aud  to  eulogize  it  because  it 
gives  the  seals  a  fair  sporting  chance  fur  their  life  (Sec.  625).  It  is 
really,  they  say,  hunting  as  distinguished  from  slaughter  {ibid).  It  is 
not  easy  to  discuss  these  propositions  with  that  patient  and  respectful 
consideration  which  is  due  to  the  importance  of  the  questions  involved. 


;.R 


U 


ij 


il 


litfi' 


VIII.— The  Fue-Sbal  is  a  Polygamous  Animal,  and  the  Male 

IS  AT  LEAST    FOUE   TlMES   AS    LAEGE    AS    THE    FEMALE.      AS    A 

liuLE,  EACH  Male  seeves  about  Fifteen  oe  Twenty  Fe- 
males, BUT  IN  Some  Oases  as  Many  as  Fifty  oe  Moee  (Case 
OF  the  United  States,  p.  327). 

A  great  diminution  in  the  number  of  females  making  up  a  harem  has 
been  noticeable  in  late  years.  Formerly  there  would  be  on  an  average 
30  cows  to  a  bull ;  now  they  will  not  average  15  (Case  of  the  United 
States,  p.  344).  The  British  Commissioners  are  in  substantial  accord 
with  the  statements  above  quoted  as  to  the  service  of  the  ♦emale  by  the 
male.  They  cite  from  Bryant  to  show  that  the  proportion  is  1  male  to 
9  to  12  females;  from  Elliott,  that  the  mean  number  is  5  to  20,  and  from 
Mr.  Grebnitzky,  that  the  ratio  should  not  exceed  1  to  20  (Sec.  64).  This 
is  suflftcient  for  our  present  purposes,  especially  as  they  add  that  it  is 
no  tincommon  event,  during  the  last  few  years,  to  find  a  single  male  seal 
■with  a  harem  numbering  from  40  to  50,  and  even  as  many  as  60  to  80,  fe- 
males (Sec.  55).  With  their  deductions  from  these  facts  we  are  not  at 
this  moment  concerned.  It  is  apparent,  on  the  face  of  the  report,  that 
the  Commissioners  had  a  theory  to  support  and  that  the  facts  were 
read  by  them  in  the  light  of  that  theory.  An  amusing  illustration, 
among  many,  is  found  in  the  statements  on  this  very  point.  Bearing  in 
mind  the  severe  criticism  of  earlier  sections  (54,  55,  and  56)  upon  the 
system  of  sacrificing  males  so  that  the  bulls  are  forced  to  supply  the 
necessities  of  40  to  60  and  even  60  to  80  females,  read  section  483,  describ- 
ing the  condition  of  seal  life  as  far  back  as  1842: 

In  the  well-known  Penny  Cyclopedia,  published  so  latMyas  1842  [half 
a  century  ago],  the  seal  is  described  as  follows:  •  *  •  "When 
these  migratory  seals  appear  off  Kamtchatka  and  Kuriles  early  in  the 
spring,  they  are  in  high  condition  and  the  females  are  pregnant.  They 
remain  on  and  about  the  shore  for  two  months,  during  whicli  the 
females  bring  forth.  They  are  polygamous  and  live  in  families,  every 
male  being  surrounded  by  a  crowd  of  females  {from  50  to  80)^  whom  he 
guards  with  the  greatest  jealousy P    (Sec.  483.) 

It  would  seem  from  this  eiitract  that  the  polygamous  practices  and 
habits  of  the  seal  liave  not  changed  since  1842  and  that  the  service  by 


SUMMAllY    OF   THE    EVIDENCE. 


287 


one  male  of  a  large  number  of  females  is  not  new  and  is  not  the  result 
of  excessive  slaugliter  on  the  land. 

We  are  not  left,  however,  to  the  statements,  inconsistencies,  and  cita- 
tions of  the  British  Commissioners'  report.  The  testimony  of  nniny 
witnesses  bears  out  the  propositions  stated  in  the  Case  of  the  United 
States  and  disposes  at  the  same  time  of  the  pretense  that  the  bulls 
are  now  compelled  to  perfoim  increased  and  exhaustive  duty  by  reason 
of  a  reduction  in  the  number  of  young  bulls. 

The  fact  seems  to  be  well  established  that  the  bull  is  possesspd  oi 
extraordinary  powers.  He  is  able  to  subsist  several  months  witliout 
tasting  food  and  to  fertilize  at  the  same  time  an  almost  indefinite  num- 
ber of  cows.  The  limitation  in  the  number  of  his  harem  depends  gen- 
erally ui)on  his  ability  to  secure  alarger  or  smaller  i)roportion  of  females. 
He  gathers  about  him  as  many  cows  as  he  can.  Joseph  Stanley-Brown 
speaks  on  this  subject  from  actual  observation.  He  describes  the 
breeding  bull  as  possessing  "  a  vitality  unsurpassed  by  any  other  mem- 
ber of  the  animal  kingdom."  He  testifies  that  the  very  large  harems 
were  unfi-equent  and  that  the  average  number  in  the  season  immedi- 
ately preceding  wi  ;  about  20  to  25.  (Appendix  to  Case  of  the  United 
States,  Vol.  II,  p.  13).  Charles  Bryant  places  the  average  at  15  to  20 
cows  for  each  bull.  {Ibid.,  p.  6.)  Samuel  Falconer  testifies  to  having 
seen  20  cows  or  more  to  a  bull,  but  of  course,  he  added,  the  exact  num- 
ber in  a  harem  is  a  matter  of  conjecture,  as  many  cows  are  absent  in  the 
water  alter  the  season  has  fairly  commenced.  {Ibid.,  p.  1G6.)  T.  F. 
Morgan  testifies  that  the  bull  returns  to  the  island  about  the  1st  of  May 
and  hauls  u;)  to  the  breeding  rookeries,  provided  he  is  able  to  maintain 
himself  thtre,  which  takes  many  bloody  conflicts.  There  he  fjathera 
about  him  as  many  females  as  he  is  abU.  {Ibid.,  p.  3.)  Capt.  Olsen  is 
quoted  by  Theodore  T.  Williams  as  placing  the  number  of  females 
served  by  one  bull  at  20  or  25  {ibid.,  p.  505.) 

The  respective  weights  of  the  animals  is  placed  in  the  Case  of  the 
United  States  at  400  to  700  pounds:  that  of  the  cows  at  100  (pp.  107, 
V3). 

This  great  disparity  in  bulk  should  be  borne  in  mind  when  we  con- 
sider the  probability  of  pelagic  copulation. 

The  Encyclopedia  Britannica  states  the  weight  of  the  animals  sub- 
stantially as  it  is  stated  in  the  tescimony  and  case.  The  male  seal  is  said 
to  weigh  500  to  700  pounds,  the  females  80  tQ  IQO,    There  seems  to  be 


.'I  ' 


't 


'I,  ! 


'■* 


■I   i'ii 


288 


ARGUMENT  OF   THE   UNITED   STATES. 


I 


H 


■'    ■   i' 


no  dispute  as  to  these  estimates  (The  Cyclopedia  also  states  that  soon 
after  the  landing  the  female  gives  birth  to  one  pup,  weighing  about 
0  pounds). 

The  real  conflict  between  the  report  of  the  British  Commissioners  and 
the  Case  of  the  United  States  seems  to  be  as  to  the  number  of  cows  in  a 
harem.  The  British  Commissioners  assert  that  the  number  is  unduly 
large  of  cows  served  by  one  bull ;  the  United  States  produce  credible  and 
experienced  witnessess  to  show  that,  on  the  contrary,  the  number  of 
females  is  decreasing.  A  comparison  is  invited  between  the  two  state- 
ments and  the  quality  of  proof  adduced  in  favor  of  each.  It  is  plain  that 
the  British  Commissioners  could  not  admit  the  diminution  in  number  of 
female  seals  without  admitting  that  decrease  to  be  wholly  due  to  pe- 
lagic slaughter.  They  are  therefore  reduced  to  the  necessity  of  insist- 
ing that  there  is  a  redundancy  of  females  and  a  deficit  of  males  on  the 
Islands.  They  are  kind  enough  to  admit,  however,  that  "  the  sparing  of 
females,  in  a  degree,  prevented,  for  the  time  being,  the  actual  depletion 
of  seals  on  the  islands  "  (Sec.  58).  It  is  not  probable  that  any  reasonable 
person  will  take  issue  with  them  on  that  point.  The  intelligence  and 
legislation  of  the  civilized  world,  not  to  speak  of  humanity  in  its  broad 
sense,  have  concurred  that  to  spare  the  female  was,  not  the  best,  but 
the  only  effective  method  of  preventing  depletion  and  eventual  exter- 
mination. 

Even  if  we  should  concede,  for  the  sake  of  the  argument  and  in  direct 
disregard  of  the  fact,  that  the  diminution  is  due  to  the  smaller  number 
of  males,  we  would  venture  to  remind  this  High  Tribunal,  if  such  a 
reminder  were  needed,  that  the  pirat-es  or  poachers  who  pursue  and 
slaughter  the  pregnant  and  nursing  females  are  killing,  by  starvation 
in  the  one  case,  by  the  mother's  death  in  the  other,  a  lauje  number  of 
males.  Even,  according  to  their  own  showing,  the  British  Commission- 
ers must  realize  that  pelagic  sealing  is  responsible,  to  some  extent  at  least, 
for  the  decrease  in  the  number  of  males,  as  well  as  of  females.  They  may 
speak  of  this  "industry,"  as  they  term  it,  and  glorify  it  as  requiring  all 
the  courage  and  skill  which  can  be  brought  to  bear  on  it  (whatever  that 
may  mean).  (Sec.  609.)  They  may  contrast  its  "sportsmanlike"  char 
acter  with  the  "  butchery"  committed  on  the  islands  (Sec.  610) ;  but  they 
can  not  fail  to  perceive  that  the  mode  of  destruction  which  principally 
deals  with  gravid  females,  necessarily  strikes  at  the  very  foundation 
ofliffe  and  must  eventually  extinguish  the  race,  because,  as  they  mildly 
state  it,  it  is  unduly  destructive  (Sec.  033). 


SUMMARY   OP   THE   EVIDENCE. 


289 


The  pelagic  sealer  not  only  kills  or  attempts  to  kill  the  males  that  he 
happens  to  meet,  but  prevents  the  birth  of  males  to  take  their  place. 
He  often  kills  three  with  one  discharge  of  his  rifle,  viz. :  the  mother, 
the  unborn  young,  and  the  pup  at  home;  but  he  does  it  in  a  "  si^ortsman- 
like"  manner,  and  he  gives  the  sleeping  animal  a  "fair  sporting  chance 
for  its  life."  (Sec.  610.)  In  many  cases  he  either  misses  his  object  or 
wounds  it  and  loses  it.  So  that  there  is  by  this  manly  process  an  utterly 
useless  waste  of  life,  in  many  cases  a  waste  more  or  less  appalling  as  the 
"sportsman"  is  more  or  less  skillful.  How  destructive  in  reality  this 
process  is  proven  to  be  may  be  seen  fi-om  the  British  Commissioners' 
report  under  the  head  of  "Proportion  of  Seals  Lost,"  (p.  104,  Sec.  003) 
It  must  be  a  consolation  to  those  disposed  to  extol  this  kind  of  sport 
that  while  nearly  "all  the  pelagic  sealers  concur  in  the  opinion  that 
the  fur-seal  is  annually  becoming  more  shy  and  wary  at  sea,"  it  is  cer- 
tain that  "  the  dexterity  of  the  hunters  has  increased  pari  passu  with  the 
wariness  of  the  seals.''^    (British  Commissioners'  Ileport,  Sec.  401.) 

That  the  number  of  the  seals  has  been  diminished  in  recent  years 
and  at  a  cumulative  rate,  and  that  such  diminution  is  the  consequence 
of  destruction  by  man,  is  certified  by  the  Joint  Report  of  all  the  Com- 
missioners. That  tins  human  agency  is  pelagic  sealing  exclusively,  and 
not  the  mode,  manner,  or  extent  of  capture  upon  the  breeding  islands, 
is  abundantly  clear. 

This  follows  necessarily  from  admitted  facts.  The  fur  seals  being 
polygamous,  and  each  male  sufficient  for  from  30  to  50  females,  and 
being  able  to  secure  to  himself  that  number,  it  follows  that  there  must 
be  at  all  times  a  larger  nunaber  of  superfluous  males,  and  the  killing  of 
these  produces  no  permanent  diminution  of  the  number  of  the  herd. 
On  the  other  hand,  the  killing  of  a  single  breeding  female  necessarily 
reduces  pro  tanto  the  normal  numbers. 

An  excessive  killing  of  males*  mi^'ht  indeed  tend  toward  a  decrease 
if  carried  to  such  an  extent  as  not  to  leave  enough  for  the  purpose  of 
effectual  impregnation  of  a'l  the  breeding  females.  The  taking  from 
these  herds  of  100,000  males  would  not,  if  that  were  the  only  draft 
allowed,  be  excessive.    This  is  evident  from  many  considerations. 

(o)  Those  who,  like  the  British  Commissioners,  propose  to  allow 
pelagic  sp''Mngto  such  an  extent  as  would  involve  the  annual  slaughterof 
at  least  5t  ,000  females  in  addition  to  a  slaughter  of  50,000  young  males  on 
the  breeding  islands,  can  not  certainly  with  the  least  consistency  assert 
that  the  capture  limited  to  100,000  males  would  be  excessive.  Nor 
14749 19 


'M 


I  IK 


.;:(lj 


i;  ,.;H 


290 


ARGUMENT  OF  THE  UNITED  STATES. 


li; 


could  they  consistently  assert  this  even  though  the  pelagic  slaughter 
p.hould  be  restricted  (by  some  means  which  no  one  has  yet  suggested) 
to  10,000  females.  It  requires  no  argument  to  show  that  the  destruc- 
tion of  even  that  number  would  be  rapidly  disastrous  to  the  herds. 

(6)  And  when  we  turn  to  the  proofs,  they  are  conclusive  that  prior 
to  the  practice  upon  any  considerable  scale  of  pelagic  sealing,  the 
annual  draft  of  100,000  young  males  did  not  tend  to  a  diminution  of 
numbers. 

(c)  Of  course  it  is  easily  possible  that  the  indiscriminate  slaughter 
effected  by  pelagic  sealing  may  soon  so  far  reduce  the  birth  rate  as  to 
make  it  difficult  to  obtain  the  annual  draft  of  100,000  young  males. 
This  draft,  under  such  circumstances,  would  not  necessarily  at  once  di- 
minish the  birth  rate,  f<  r,  the  number  of  females  being  less,  a  less  num- 
ber of  males  would  be  required.  The  number  of  the  whole  herd  might 
be  rapidly  diminished  by  the  slaughter  of  females  and  the  consequent 
diminution  of  the  birth  rate,  and  still  100,000  males  continue  to  be  ta- 
ken for  a  time  without  damage.  How  soon  a  point  would  be  reached 
at  which  so  largo  a  draft  of  males  from  a  constantly  diminishing  number 
of  births  would  operate  to  produce  an  insuflftciency  of  males,  is  a  prob- 
lem which  from  want  of  precise  knowledge  of  the  relative  numbers  of 
the  sexes,  it  would  be  difiBcnlt  to  solve. 

The  British  Commissioners'  Export  upon  this  subject  is  as  follows: 

The  systematic  and  persistent  hunting  and  slaughter  of  the  fur-seal 
of  the  North  Pacific,  both  on  shore  and  at  sea,  has  naturally  and 
inevitably  given  rise  to  certain  changes  in  the  habits  and  mode  of  life 
of  that  animal,  which  .are  of  importance  not  only  in  themselves,  but  as 
indicating  the  ellects  of  such  pursuit,  and  in  showing  in  what  particular 
this  is  injurious  to  seal  life  as  a  whole.  Such  changes  doubtless  began 
more  than  a  century  ago,  and  some  of  them  may  be  traced  in  the  his- 
torical precis,  elsewhere  given  (Sec.  782  et  seq.).  It  is  unfortunately 
true,  however,  that  the  disturbance  to  tlie  normal  course  of  seal  life  has 
become  even  more  serious  in  recent  yt'ars,  and  that  there  is  therefore, 
no  lack  of  material  from  which  to  study  its  character  and  effect  even  at 
the  present  time. 

In  the  zeal  of  their  advocacy  on  behalf  of  pelagic  sealing  and  their 
denunciation  of  the  methods  in  use  on  the  Islands,  the  Commissioners 
have  experienced  much  and  evident  difficulty  in  framing  their  theory. 
If  they  admitted.  In  unqualified  terms,  a  decrease  in  number,  the  ob- 
vious deduction  from  the  concession  would  be  that  the  unlimited  slaugh- 
ter of  females  must  bear  the  blame  and  burden  of  such  a  result.  To 
that  extent  pelagic  sealing  must  be  condemned.  If,  on  the  other 
hand,  they  should  assert  that  the  number  actually  increased,  this 


SUMMARY   OF    THE    EVIDENCE. 


291 


\roxil<l  only  be  consistent  with  an  approval  of  the  methods  in  use  on 
the  hind.  Between  this  Scylla  and  this  Oharybdis  a  way  of  escape 
must  be  found  and  it  was  found.  The  ingenuity  here  displayed  de- 
serves full  notice  and  acknowledgment.  The  Joint  Beport  contains  this 
statement: 

We  find  that  since  the  Alaska  purchase  a  marked  diminution  in  the 
number  of  seals  on  and  liabitually  resorting  to  the  Pribilof  Islands 
has  taken  i)lace,  that  it  has  been  cumulative  in  elfect  and  that  it  is  the 
result  of  excessive  killing  by  man. 

Bearing  in  mind  that  the  fur-seals  forming  the  object  of  this  contro- 
versy have  no  other  home  or  land  than  the  Pribilof  Islands,  and  that 
the  British  Commissioners  themselves  concede  that  they, /or  the  moat 
party  breed  on  those  islands;  bearing  in  mind,  too,  that  these  gentlemen 
have  not  yet  discovered  any  other  summer  habitat  for  the  seals,  it 
would  seem  that  this  declaration  is  equivalent,  in  its  fair  sense  and 
meaning,  to  a  statement  that  the  fur-seals  that  frequent  the  American 
coast  and  the  Bering  Sea  have  suffered  a  marked  decrease. 

Perhaps  it  was  so  intended  by  the  British  as  it  was  by  the  United 
States  Commissioners;  but  if  so,  the  former  gentlemen  have  lost  sight 
of  their  original  intention  and  have  been  led  to  nice  distiuutions,  which 
we  shall  now  examine. 

That  the  seal,  although  "essentially  pelagic"  (Sec.  26),  has  not  yet 
learned  to  breed  at  sea  is  not  denied,  although  to  the  vision  of  the 
Commissioners  the  prospect  of  such  a  transformation  or  evolution  is 
evidently  not  very  remote.  We  must,  in  justice  to  them,  quote  one 
single  passage  which  admirably  illustrates  the  complacency  and  self- 
confidence  with  which  they  wrest  to  their  own  purposes,  with  unhesi- 
tating violence,  the  laws  of  nature  and  the  mysteries  of  ulterior 
evolution.  If  this  quotation  does  not  give  a  just  idea  of  the  imagina- 
tive powers  of  these  officials  nothing  but  a  perusal  of  the  whole  of 
their  work  will  do  them  justice: 

The  changes  in  the  habits  and  mode  of  life  of  the  seals  naturally 
divide  themselves  into  two  classes,  which  may  be  considered  separately. 
The  first  and  most  direct  and  palpable  of  these  is  that  shown  in  the 
increased  shyness  and  wariness  of  the  auiraal,  which,  though  always 
pelagic  in  its  nature,  has  heeu  forced  by  circumstances  to  shun  the  land 
more  than  before,  so  that,  but  for  the  neoessiti/  imposed  upon  it  of  seek- 
ing the  shore  at  the  season  of  birth  of  the  young,  it  might  probably  ere  this 
nave  become  entirely  pelagic. 

An  animal  "always  ]>elagic," /orcc<i  by  circumstances  to  shun  the  land 
more  than  bifore,  and  which  would  become  entirely  pelagic  long  before 


ifl  1 


I 

'     1  ' 

1/i'! 

^ 

'i/'l 


I:!.!'. 


■  I! 


292 


ARGUMENT   OP   THE    UNITED   STATES. 


this  if  it  were  not  obliged  to  seek  the  shore  for  so  ti'ifling  an  object  as 
giving  birth  to  its  young  certainly  deserves  to  be  classed  among  the 
cariosities  of  nature.  The  difference  between  animals  (now)  always 
pelagic  and  those  (in  the  t\itare)  entirely  pelagic  may  not  readily  be 
understood  without  explanation  not  vouchsafed.  How  can  they  be  al- 
ways pelagic  if  they  are  obliged  to  seek  the  land  or  perish  and  why  is 
it  reasonable  to  talk  of  the  probability  of  their  becoming  something 
different  from  what  they  are  when  that  conjecture  is  based  upon  noth- 
ing but  reckless  and  grotesque  assumption?  Of  course  this  and  other 
specimens  of  affront  to  common  sense  are  merely  gratuitous  and  point- 
less vagaries.  But  the  thesis  most  be  sustained  viz :  that  the  seals  are 
not  even  amphibious  animals;  their  resort  to  land  is  a  merely  accidental 
necessity,  and  therefore  the  United  States  can  no  more  claim  a  right 
to  or  possesi^iou  in  them  than  in  other  "essentially  pelagic  animals," 
sacb  as  the  whale,  the  codfish,  or  the  torbot. 

K  anything  more  were  needed  to  emphasize  the  absurdity  of  this 
defiance  of  well-known  facts  and  settled  distinctions  in  the  animal  world 
we  might  still  farther  cite  the  British  Commissioners  on  the  subject  of 
the  seal  pelage  or  shedding  of  hair.  It  seems  that  these  pelagic  animals 
were  not  endowed  by  natore  with  the  proper  skin  to  perform  this  func- 
tion in  their  native  element.  Unless  they  can  find  a  suitable  place 
out  of  water  they  retain  the  old  hair  and  disregard  the  laws  which 
would  compel  an  annual  sliedding.  Lest  this  seem  an  exaggeration,  read 
their  Report  citing  Mr.  Grebnitsky:  "During  the  '  stagey'  or  shedding 
season  their  pelage  becomes  too  thin  to  afford  a  suitable  protection  from 
the  water.    (See  section  202,  also  281,  631,  632.) 

It  is  hardly  necessary  to  say  that  this  theory,  so  gravely  and  seri- 
ously advanced,  that  the  seal  is  naturally  and  essentially  a  pelagic 
animal,  is  utterly  unsustaiued  by  evidence,  is  refuted  by  the  language 
of  the  Commissioners  themselves  and  disputed  by  elementary  writers. 
It  is  only  necessary  to  ascertain  how  naturalists  define  pelagic  animals 
and  tb'  u  compare  such  definitiou  with  the  known  characteristics  and 
rudimentary  elements  of  seal  life  (see  especially  for  this  tba  books  of 
Johns  Hopkins  University).  Besides,  the  unanimous  and  unquestioned 
testimony  of  the  agents  for  the  Government  and  the  company  shows 
that  the  fur-seals  spend  at  least  four  months  of  the  year  on  the  Pribilof 
Islands. 

Having  found,  with  the  American  Commissioners,  a  marTced  diminu- 
tion in  the  number  of  seals  on  and  habitually  resorting  to  the  Pribilof 
Islands,  the  Britisb  Conimissioners  proceed  to  show  that  the  seals  are 


ril 


TT 


SUMMARY    OF    THE    EVIDENCE. 


293 


more  numerotu  than  ever.  Theyjiave,  no  doubt,  demonstrated  this  to 
tbeir  entire  satisfaction  on  pages  72  and  73  of  their  Beport.  Capt. 
Warren  tliey  quote  as  saying  that  he  noticed  no  diminution  in  the 
number  of  seals  during  the  twenty  years  that  he  had  been  in  the  busi- 
ness, and,  if  any  change  at  all,  an  increase.  (Sec.  403.)  To  the  same 
effect,  Capt.  Leary,  who  says  that  in  tlie  Bering  Sea  they  were  more 
numerous  than  he  had  ever  seen  them  (Sec.  403);  while  Mr.  Milne,  col- 
lector of  customs  at  Victoria,  reports,  what  others  have  said  to  him,  that 
owners  and  masters  do  not  entertain  the  slightest  idea  that  the  seals 
are  scarce.  (Sec.  403.)  What  a  tribute  this  must  be  to  the  management 
of  the  Pribilof  Islands  if,  notwithstanding  the  conceded  destruction  of 
gravid  and  nursing  females,  these  statements  should  be  true.  Capt. 
W.  Cox  took  1,000  seals  in  four  days,  100  ^niles  to  the  tcestward  of  the 
Pribilof  Islands.  (Sec.  405.)  He  found  the  seals  much  more  plentiful 
in  Bering  Sea  than  he  had  ever  seen  them  before.  It  would  have 
added  much  to  the  interest  of  Capt.  Cox's  statement  if  he  had  told  us 
how  many  of  these  seals  gave  evidence  of  having  left  their  pups  at 
home. 

The  British  Oommiitsioners  multiply  the  evidence  to  show  that  the 
general  experience  as  stated  to  them  has  been  that  seals  were  equally 
or  more  abundant  at  sea  at  the  time  of  their  examination  thaii  they  had 
been  in  former  years.  It  is  difldcult  to  treat  this  with  the  respect  that 
a  report  emanating  from  get  tlemen  of  character  and  high  official  posi- 
tion should  meet.  Either  the  statement  in  the  Joint  Beport  is  true  and 
the  assumption  of  an  increase  is  untrue,  or  viee  versa.  In  view  of  the 
evidence  that  these  seals  have  no  other  home  than  the  Pribilof  Islands, 
it  is  plain,  beyond  the  necessity  of  demonstration,  that  all  the  seals  killed 
by  Capt.  Cox  and  others  in  the  Bering  Sea  were  inhabitants  of  those 
islands,  and  the  testimony  only  goes  to  show  that  the  mothers  do  go 
out  to  sea  100  miles  or  more,  as  is  sworn  to  by  the  witnesses  for  the 
United  States,  and  that  it  is  while  they  are  on  the  feeding  grounds,  or 
searching  abroad  for  food,  that  they  are  captured  by  the  Canadian 
poachers,  xi'  this  is  not  so,  then  let  the  Commissioners  or  those  advo- 
cating their  views  tell  us  where  these  seals  slaughtered  by  Capt.  Cox 
and  others  found  their  "summer  habitat". 

Any  pretense  that  the  seals  are  decreasing  at  home — i.  e.,  where  they 
live  through  the  summer,  and  breed,  and  nurse,  and  shed  their  hair— 
and  at  the  same  time  are  increasing  in  the  sea  is  simply  an  absurdity. 
It  would  have  added  much  to  the  value  of  the  te^timouy  of  all  these 


wi 


'i\-,'m 


i4  i'!';! 


';ini' 


11 


i 


294 


ARGUMENT  OP  THE  UNITED  STATES. 


iiuisters  if  they  had  not  sedulously  avoided  stating  the  sex  of  the  ani- 
mals that  they  killed. 

Tliere  is  one.  and  one  explanation  only,  of  this,  and  that  explanation 
makes  the  stories  above  quoted  plausible.  The  pelagic  sealers  were 
engaged  in  hunting  nursing  mothers  on  the  feeding  grounds,  where 
•those  animals  are  found  in  large  numbers.  The  decrease  proved,  and, 
indeed,  admitted  co  exist  (see  Joint  Report),  had  not  yet  been  so  great 
as  to  be  manifest  to  those  sealers  who  were  so  fortunate  as  to  fall  in 
with  a  number  of  females  either  intent  upon  finding  the  food  necessary 
to  produce  a  flow  of  milk  or  sleeping  on  the  surface  of  the  water  after 
feeding. 

And  here  we  may  note  another  illustration  of  the  thesis  and  its  ad- 
vocacy. Having  satisfied  themselves  that  pelagic  sealing  rather  ope- 
rated to  increase  the  supply  of  seals,  they  remembered  that  the  killing 
of  young  males  was  objectionable  and  likely  to  result  in  extermination, 
and  thereupon  discovered  the  fact  that  "  a  meeting  of  natives  was  held" 
at  which  the  aborigines  unanimously  expressed  the  opinion  that  the 
seals  had  diminished  and  would  contiuuo  to  diminish  from  year  to  year 
(an  opinion,  too  plain,  we  think,  for  argument),  but  they  at  once  assign 
the  reason,  which  is  not  the  killing  of  many  females,  but  the  extraor- 
dinary  fact  that  "all  tlte  male  seals  had  been  slaughtered  without  allow- 
ing any  to  come  to  maturity  upon  the  breeding  grounds"  (Sec.  438). 

Having  thus  proved  that  the  seals  were  in  a  flourishing  condition  of 
Increase,  and  that  they  were  decreasing  in  an  alarming  degree,  the 
conclusion  is  reached  that  the  decrease  is  on  the  laud  and  the  increase 
in  the  water: 

The  general  efl'ect  of  these  changes  in  the  habits  of  the  seals  is  to 
minimize  the  number  to  be  seen  at  any  one  time  on  the  breeding  islands, 
while  the  average  number  to  be  found  at  sea  is,  at  least  proportionately, 
though  perhaps  in  face  of  a  general  decrease  in  the  number  of  seals,  not 
absolutely  increased  (Sec.  445  of  British  Oommissionefs'  Report). 

Would  it  be  irrelevant  io  inquire  what  was  the  "summer  habitat"  of 
the  numerous  seals  slaughtered  by  Oapt.  Warren,  Capt.  Leary,  and 
Capt.  CoxT  Were  they  not  all  of  the  Pribilof  family?  Did  not  the 
Commissioners  who  quoted  Oapt.  Cox  to  the  effect  that  he  had,  no  doubt 
in  true  sportsmanlike  fashion,  with  a  shotgun,  killed  250  seals  a  day 
for  four  days,  know  that  the  enormous  majority  of  these  were  nursing 
mothers,  whose  j)up«  were  starving  at  homef 


SUMMARY   OF  THE  EVIDENCE. 


295 


IX.— Destruction  by  Pelagic  Sealing  and  Its  Extent— The 
Remedy  Proposed  by  the  British  Commissioners — The 
True  and  Only  Kesiedy  Consists  in  Absolute  Prohibition 
OF  Pelagic  Sealing. 

It  has  been  heretofore  sought  to  show  that  the  Commisaioners  for 
Great  Britain  in  dra\ving  up  the  report  had  endeavored  to  reach  a 
conclusion  favorable  to  the  shiughter  of  seals  at  sea,  an  "industry,"  as 
they  call  it,  in  which  they  apparently  saw  little  that  was  objectionable 
and  which  they  believed  it  to  be  the  interest  and  policy  of  their  country 
to  protect.  In  the  course  of  their  examination,  however,  they  have 
necessarily  been  furnished  with  facts  palpably  inconsistent  with  their 
theory  and  have  been  reluctantly  compelled  to  produce  proofs  of  the 
barbarous,  savage,  and  destructive  processes  by  which  the  Canadian 
poachers  secured  their  prey. 

(a)  Tlie  Commissioners  allude  in  sarcastic  vein  to  the  fact  that  "there 
is  a  'remarkable  agreement'  found  aniong  those  interested  in  decrying 
jtelagic  sealing,  to  the  effect  that  the  pelagic  sealers  do  and  must  kill  a 
large  number  of  female  breeding  seals."  Why  this  "  agreement,"  which 
undoubtedly  exists,  should  be  mentioned  as  "remarkable,"  we  fail  to 
perceive,  the  evidence  produced  by  the  Commissioners  themselves 
plainly  showing  that  no  discrimination  is  or  can  be  made  by  the  pelagic 
hunters  and  that  they  slaughter  indiscriminately  all  the  animals  tl'at 
appear  within  reach  of  their  shotguns.  They  themselves  admit  that 
"a  considerable  proportion  of  gravid  females"  are  slain  (Sec.  648),  and 
their  own  witnesses  describe  the  process  of  skinning  them  on  deck,  in 
the  course  of  which  milk  and  blood  flow  freely  together,  while  in  some 
cases  fully  formed  young  are  taken  from  the  slaughtered  mothers. 
Under  such  circumstances  there  is  no  ground  for  any  criticism  nor  any 
reason  shown  why  general  acquiescence  in  such  a  proposition  should 
be  treated  with  a  sneer  upon  the  truth  of  the  statement. 

(&)  It  is  certain,  they  say,  that  females  with  milk  are  occasionally 
killed  at  sea  by  the  pelagic  sealers  (Sec.  314).  That  they  should  not 
be  able  to  give  the  exact  ])roportion  of  the  pregnant  and  nursing 
females  to  the  rest  may  be  due  to  tlie  fact  that  their  informauts,  wbile 
exulting  over  the  large  slaughter  that  they  succeeded  in  accomplishing 
in  Bering  Sea,  do  not  appear  to  have  stated  how  many  of  such  breed- 
ing females  they  had  succeeded  in  captuiiug  (page  73). 


V'      'i 


296 


ARGUMENT  OF   THE  UNITED   STATES. 


:i:i: 


>Mh\ 


(c)  It  is  claimed,  however,  that  pelagic  seal-flshing  is  not  the  only 
cause  for  the  decrease  of  the  seals  on  the  Pribilof  Islands,  and  this  is 
supported  by  a  quotation  to  be  found  at  page  187  of  their  Report,  as 
to  the  probable  fate  of  the  fur-seal  in  America.  The  paragraphs  relating 
to  the  objectionable  features  of  pelagic  seal-flshing  seem  to  be  omitted 
and  indicated  by  asterisks,  but  the  paper  is  quoted  to  show  tliut  driv- 
ing of  the  seals  on  the  island  is  one  of  the  evils  which  maybe  remedied. 
The  conclusion  of  Mr.  Palmer,  the  authority  thus  cited,  is  (1)  that  no 
teals  should  be  killed  b>;  any  one  ai  any  time  in  the  waters  of  Bering  Sea; 
(2)  that  all  seals  driven  ou  the  islands  should  be  killed;  none,  he  says, 
should  be  driven  and  again  allowed  to  enter  the  sea  (p.  189).  Cer- 
tainly Mr.  Palmer's  paper  is  very  interesting  and  if  his  facts  and  con- 
clusions are  adopted  pelagic  " seal-fishing  "  must  be  prohibited.  ''The 
killing  of  seals  as  conducted  on  the  islands,"  he  says,  "is  as  near  theo- 
tetical  perfection  as  it  is  possible  to  get  it.  They  are  quickly  dis- 
patched and  without  pain.  One  soon  recognizes^  as  in  the  killing  of 
sheep,  that  in  the  quickness  and  neatness  of  the  method  lies  its  success, 
all  things  considered"  (p.  187).  This  certainly  does  not  agree  with 
the  "sportsmanlike"  view  of  the  British  Commissioners,  but  embodies 
Ifrhat  we  might  call  the  humane  and  common-sense  aspect  of  the  sub- 
ject by  showing  that,  so  far  from  the  desirability  of  giving  the  seal  "  a 
chance  for  its  life,"  there  should  be  a  selection  made  in  each  case  and 
the  animal  should  be  painlessly  and  immediately  slaughtered.  The 
object  should  be,  not  to  provide  sport  to  adventurous  men  and  keen 
hunters,  but  to  secure  as  many  animals  as  possible  with  humanity  and 
a  due  regard  to  the  preservation  of  the  race. 

{d)  It  is  respectfully  submitted  that  as  between  the  two  systems, 
one  of  which  is  "theoretically  perfect"  and  in  the  course  of  which 
the  animals  are  selected  and  "promptly  and  neatly  killed,"  on  the 
one  hand,  and  indiscriminate  sealing  at  sea  on  the  other,  there  can 
be  no  room  for  hesitation.  But  the  evident  and  unquestionable  supe- 
riority of  the  methods  adopted  on  the  islands  consists,  also,  in  the 
fact  that  it  is  by  its  nature  susceptible  of  indefinite  improvement. 
No  argument  is  needed  to  show  that  the  "theoretical"  perfection 
may  with  care  become  "practical"  perfection,  and  that  if  driving  be 
really  open  to  the  objections  made  by  Mr.  Palmer  it  is  not  impos- 
sible— indeed,  it  must  be  coniparatively  easy — to  remedy  them  in 
the  manner  suggested  by  himself  or  otherwise.  In  the  preserva- 
tion   of  pelagic  sealing  all  con<ur  that  it  is  impossible  to  select 


SUMMARY    OP   THE    EVIDENCE. 


297 


tlio  seals  which  it  is  dosinvblo  to  kill  ami  that  the  circmnstances 
and  nature  of  the  animal  are  8nch  that  in  most  v.xnca  the  female  preg- 
nant or  giving  suck  must  fall  a  victim  to  the  weapons  of  the  poacher. 
Indeed  the  British  Commissioners  themselves  state  (Sue.  048)  that  it  is 
ffenerally  admitted  that  a  considerable  portion  of  gravid  females  are 
found  among  the  seals  taken  in  the  early  part  of  each  sealing  season. 
Between  two  such  systems,  we  repeat,  there  can  be  no  hesitancy  as  to 
which  should  be  preferred,  the  one  based  on  humane  and  intelligent 
principles,  and  which  the  interest  of  the  parties  concerned  would  natu- 
rally make  as  perfect  as  possible,  the  other,  which  by  its  very  nature 
leads  to  brutality  and  undue  destruction,  and  which  is  profitable  only 
when  it  is  cruel  and  indiscriminate.  These  considerations  are  reen- 
lorced  by  the  very  significant  fact  that  the  breeding  females  tchen  found 
at  sea  are  always  pregnant  or  nursing,  and  frequently  both.  This  fol' 
lows  from  the  undisputed  facts  (1)  that  the  period  of  gestation  is 
over  eleven  months;  (2)  that  they  reach  the  islands  when  on  the  point 
of  delivery;  (3)  that  they  remain  there  until  fertilized,  and  (4)  that 
during  the  period  of  their  stay  they  nurse  the  young,  which  depend 
wholly  upon  their  milk  for  sustenance. 

(e)  The  Bridsh  Commissioners'  suggestion  as  a  remedy  for  the  slaugh- 
ter of  the  mothers  and  nurses,  contained  in  section  155,  subdivision  c, 
does  not  seem  to  be  one  which  can  have  been  very  seriously  etitertained 
by  themselves.  They  suggest  a  provision  that  a  close  season  be  pro- 
vided extending  from  the  15th  of  September  to  the  1st  of  May  in  each  year, 
during  which  all  killing  of  seals  shall  be  prohibited,  with  the  additional 
provision  that  no  sealing  vessels  shall  enter  Bering  Sea  before  the  1st  oj 
July  in  each  year.  They  state  as  a  fact  in  section  649  that  "Bering  Sea 
is  now  usually  entered  by  the  pelagic  sealers  between  the  30th  of  June 
and  the  1st  of  July  and  in  Bering  Sea  the  same  conditions  hoW  that  are 
described  in  section  648,  namely,  that  a  considerable  portion  of  gravid 
females  are  found  among  the  seals  talcenSn  the  early  part  of  each  sealing 
season.  They  also  say  that  the  pregnant  females  begin  to  "bunch  up" 
and  to  travel  fast  toward  Bering  Sea,  at  the  latest,  the  1st  of  June. 
In  other  words,  the  best  season  for  killing  nursing  and  pregnant  females 
in  the  Bering  Sea  is  precisely  the  season  recommended  by  the  commission- 
ers as  the  proper  one  for  allowing  the  slaughter.  Surely  the  pelagic 
sealers  could  ask  no  better  protection  for  their  "industry"  in  Bering 
Sea  than  this,  nor  could  any  better  method  of  continuing  the  abuse 
and  hastening  the  destruction  be  devised  than  opening  the  catch  to  thb 
pelagic  sealers  at  their  favorite  season. 


( 


ii    , 


1 1 


''     \'i 


298 


ARGUMENT  OF  THE  UNITED  STATES. 


■j;; ! 


i.', 


;- 


i 


To  nndprstancl  this  extraordinary  recoimneiidation  fuHj,  sections 
648  and  G49  of  the  British  Commissioners'  Beport  should  bo  read  to« 
gether.  It  may  be  taken  for  granted  that  the  i)elagic  sealers  need  not 
be  told  when  the  hunting  season  in  Bering  Sea  is  at  its  best.  Ex- 
perience has  taught  them,  and  they  have  profited  by  the  instruction, 
that  their  operations  in  Bering  Sea  could  be  most  profitably  conducted 
during  the  months  of  July  and  August.  Hence  it  has  been  their  usage 
to  enter  Bering  Sea  between  June  20  and  July  1  (Sec.  649).  Tliey  would 
probably  not  rebel  against  a  possible  and  occasional  delay  in  opening 
the  season,  by  ten  days.  The  nursing  mothers  would  I-  still  espe- 
cially open  to  capture,  and  would  still  constitute  the  8  >le  article  of 
their  "  industry."  In  their  search  for  food  and  in  the  int>i  liictive  confi- 
dence which  the  mothers  of  dependent  offspring  almost  universally 
exhibit  the  seals  would  be  less  "wary"  than  at  other  seasons,  and 
good  shots  might  still  carry  on  their  mission  of  destruction  with  the 
superadded  comfort  that  their  business  was  made  reputable  by  law.  As 
if  to  make  even  this  small  restriction  upon  the  liberty  of  the  iielagiu 
sealer  less  objectionable,  he  is  reminded  that  "after  about  the  20th  of 
May  or  at  the  latest  the  1st  of  June,very  few  females  with  young  are  taken." 
(Sec.  648.)  His  loss  would  thus  be  trifling  so  far  as  Bering  Sea  as  a  field 
of  profitable  operation  is  concerned.  It  seems  that  in  fine  sealing 
weather  the  schooners  can  not  keep  up  with  the  females.  Hence  they 
are  not  all  slaughtered.  At  this  time,  after  May  20,  or  June  1,  the 
pregnant  females  begin  to  "bunch  up"  and  the  catch  consists  chiefly 
of  young  males  and  barren  females  (Sec.  648).  Why,  then,  even 
this  restriction?  "When  are  the  breeding  females  captured!  Is  it 
really  intended  to  assert  that  the  only  injury  done  is  that  "at  a  later 
date  in  the  summer  a  few  females  in  milk,  and  therefore  presumably 
from  the  breeding  places  on  the  islands,  are  occasionally  killed,  but  no 
large  numbers f"  So  extraordinary  a  statement  made  in  the  face  of 
overwhelming  proofs  requires  no  discussion.  The  British  Commis- 
sioners should  Lave  vouchsafed  information  as  to  the  thousands  of 
nursing  mothers  killed  during  the  season  from  July  to  September  and 
should  have  told  us  whence  they  came  and  where  was  their  "  summer 
habitat."  It  is  very  likely,  as  they  assert,  that  very  few  females  with 
young  are  taken  after  June  1.  The  obvious  reason  is  that  they  have 
become  nursing  mothers  by  the  1st  of  July,  those  that  escaped  the 
shot-gun,  the  rifle,  the  spear,  and  the  gaff  having  found  temporary 
shelter  and  protection  on  the  islands. 

(/)  Although  we  have  laid  much  stress  upon  this  in  other  parts  ot 


SUMMARY   OF    THE    EVIDENCE. 


299 


this  argument,  the  subject  is  ro  important  that  we  again  recur  to  it  and 
call  attention  once  more  to  the  adniisHiouHand  inconniHtencieH  in  the  Brit- 
ish Commissioners'  Report.  The  Commissioners  in  section  B12  exhibit 
much  indignation  at  the  free  use  that  has  been  made  of  the  api)cllatiop 
''poachers"  as  applied  to  the  pelagic  sealers  in  general  and  to  Cana 
diau  sealers  in  particular.  This,  they  say,  has  been  done  with  the  obvi 
ous  purpose  of  prejudicing  public  opinion.  They  theu  proceed  to  claim 
that  "adventurers"  from  the  United  States  are  mainly  responsible  foi 
the  reduction  of  seals  bnmght  about  in  the  southern  seas.  The  killing 
of  seals,  they  say,  has  always  and  everywhere  been  ci.rried  out  in  the 
indiscriminate,  ruthless,  and  wasteiul  manner  described  in  detail  iu 
several  of  the  works  cited  in  their  Report,  and  in  most  cases  a  greater 
part  of  the  catch  has  consisted  of  females.  (Sec.  612.)  It  is  cer- 
tainly no  part  of  the  purpose  of  counsel  for  the  United  States  to  defend 
"  adventurers  "  guilty  of  these  barbarous  practices,  whatever  the  nation 
to  which  they  belong.  It  is  rather  a  question  of  humanity  than  of 
nationality,  and  the  United  States  would  not  hesitate  to  undertake  and 
to  assure  the  repression  of  practices  which  can  not  be  described  in  over- 
harsh  terms  if  their  own  citizens  alone  were  engaged  in  the  business. 
It  is  only  to  prevent  *Hhe  indiscriminate,  ruthless,  and  wasteful 
slaughter  "  by  persons  who  claim  the  protection  of  a  foreign  flag  that 
these  methods  of  arbitration  are  resorted  to. 

But  the  waste  of  the  seals  lost,  in  addition  to  the  destruction  of  the 
fetus  or  of  the  pup,  as  the  case  may  be,  is  shown  to  some  extent  by  the 
Report  of  the  Commissioners  for  Great  Britain.  We  refer  esx^ecially 
to  sections  613,  614,  615,  617,  618,  619,  620,  621. 

The  discrepancy  between  the  two  classes  of  statements  given  by 
themselves  is  very  marked.  The  agents  of  the  United  States,  captains 
in  the  United  States  Navy,  the  superintendents,  and  others  testify  that 
40  to  60  per  cent  of  the  seals  are  lost.  It  would  seem,  however,  from 
the  testimony  in  defense  of  pelagic  slaughter  that  old  hunters  are 
much  more  successful  than  the  young  ones.  Green  hands,  says  the 
captain  of  the  Eliza  Edicards,  might  lose  as  much  as  25  per  cent  of 
the  seals  shot,  but  experienced  hunters  would  bag  their  game  to  the 
extent  of  95  per  cent;  that  is  to  say,  they  would  lose  but  5  per  cent  of 
the  females  shot,  (cection  625.)  The  number  of  green  hands  on  board 
the  schooner  Otto,  on  which  Robert  H.  McManus,  a  journalist,  was 
a  passenger,  sailing  for  his  health,  must  have  been  very  griiit  in  pro- 
portion to  the  whole  crew.    It  seemed  to  him  that  the\  did  not  get 


f  \'\ 


•Ill 


Zt 


SCO 


ABGtMKN*  OP  THE   tJNITED   STATES. 


,1. 


o^er  one  seal  to  every  hundred  shot  at.    (Vol.  II,  p.  335,  of  the  Appen 
dix  to  the  Oase  of  the  United  States.) 

Wfc  shall  now  lay  before  this  High  Tribunal  additional  testimony  as 
to  the  nature  and  extent  and  effect  of  pelagic  sealing.  The  extracts 
and  refei'ences  about  to  be  given  may  seem  monotonously  cumulative, 
but  it  is  important  to  show,  otherwise  than  by  mere  aflBrmatiou,  how 
far  the  existence  of  the  herd  is  menaced  and  how  soon  extermination 
may  be  expected  unless  prompt  and  efficient  measures  of  redress  be 
adopted. 

The  evidenoe  of  credible  witnesses,  dealing  neither  in  generalities  nor 
in  speculation,  leaves  no  doubt  as  to  the  appaUing  extent  of  the  massa- 
cW.  It  is  impossible  to  assume  that  the  witnesses  produced  for  the 
United  States  deliberately  perjured  themselves  as  to  numbers,  dates, 
and  distances.  Even  if  any  reason  were  given  for  throwing  a  suspi- 
cion upon  their  character,  the  reticence  of  many  of  the  witnesses  exam- 
ined by  the  British  Commissioners  as  to  the  sex  of  the  animals  killed  is 
significant.  It  is  to  the  credit  of  these  persons  that  while  they  did  not 
hesitate  to  state  that  they  had  slain  large  numbers  of  seals  in  Ber- 
ing Sea  without  discrimination,  they  refrained  from  giving  any  precise 
data  as  to  the  sex  of  the  animals  that  they  captured. 

If,  however,  it  is  desired  to  know  how  far  this  ruthless  and  exter- 
minating process  is  carried,  the  desire  for  information  may  readily  be 
gratified. 

The  sealing  schooner  Favorite,  McLean,  master,  according  to  Osly,  a 
native  sealer  who  went  to  the  Bering  Sea  on  her  as  a  hunter,  captured 
4,700  seals,  most  all  of  which  were  cow  seals  giving  milk.  They  were 
captured  at  a  distance  of  about  100  miles  from  the  Pribilof  Islands. 

In  1888  the  same  hunter  was  on  board  the  Challenger,  Captain  Wil- 
liams, master.  They  were  less  successflii  and  caught  only  about  2,000 
seals,  most  of  which  were  cows  in  milk. 

In  1889,  he  again  went  to  sea  on  the  schooner  James  O.  Swan,  but 
the  seals  were  not  so  abundant;  they  were  rapidly  decreasing.  (Ap- 
pendix to  the  Case  of  the  United  States,  Vol  II,  pp.  390,  301.) 

Niels  Bonde  {ibid.,  p,  315),  of  Victoria,  British  Columbia,  was  a  sea- 
nlan  on  board  the  schooner  Kate.  He  went  to  the  Bering  Sea,  arriving 
there  in  July,  and  left  in  the  latter  part  of  August.  They  had  caught 
about  1,700  seals  in  that  time  between  the  Pribilof  Islands  and  Un- 
alaska.  These  were  caught  from  10  to  100  or  more  miles  off  St  George 
Island.    The  seals  caught  in  Bering  Sea  were  females  that  had  given 


SUMMARY    OF   THE   EVIDENCE. 


301 


birth  tx)  tbetr  yonng.  He  often  noticed  milk  flowing  ont  of  their 
breasts.  He  had  seen  live  pups  cut  out  of  their  mothers  and  live 
around  on  the  decks  for  a  \yeek. 

Peter  Brown  {ibid.,  p.  377),  a  native,  part  owner  of  a  schooner  for  about 
seven  years  and  owner  of  the  James  G.  Swan  for  about  three  years; 
hunted  in  Bering  Sea  in  1888;  the  catch  was  nearly  all  cows  that  bad 
given  birth  to  their  young  and  had  milk  in  their  teats.  His  people 
hunted  with  the  spear  and  therefore  did  not  lose  many  that  they  hit. 

Thomas  Brown,  No.  2  {ibid  .,  p.  40G),  made  a  sesiling  voyage  to  the 
North  Pacific  and  Bering  sea  on  the  A!  xander.  They  caught  250 
seals  before  entering  the  sea,  the  h':rgest  percentage  of  which  were 
females,  most  of  them  having  young  pups  in  them.  He  saw  some  of 
the  young  pups  taken  out  of  them.  They  entered  tlie  sea  about  the 
1st  of  May  and  caught  between  600  and  700  seals,  from  30  to  150  miles 
off  the  seal  islands.  Four  out  of  five  were  females  in  milk.  He  saw  the 
milk  running  on  the  deck  when  he  skinned  them.  They  used  mostly 
shotguns,  and  got  on  the  average  3  or  5  out  of  every  12  killed  and 
wounded.    Evidently  these  were  what  has  been  termed  "  green  hands." 

Oha'  les  Challall,  who  has  been  lieretofore  quoted,  a  sailor  in  188S  on 
the  Vanderbilt,  iu  1889  on  the  White,  and  in  1890  on  the  Hamilton,  gives 
his  experience,  which  may  be  found  at  pages  410  and  411.  Tbey  cap- 
tured a  great  many  seals  on  the  fishing  banks  just  north  of  and  close 
by  the  Aleutian  Archipelago.  Most  of  the  seals  they  killed  going  up 
the  coast  were  females  heavy  with  pup.  He  thinks  nine  out  of  every 
ten  were  females.  At  least  7  out  of  8  seals  caught  in  the  Bering  Sea 
were  m  others  with  milk. 

Circus  Jim  {ibid.,  p.  380),  a  native  Makah  Indian,  captured  a  great  many 
cow  seals  that  were  giving  milk.  Most  of  the  seals  he  caught  in  the  sea 
were  giving  milk.  His  theory  as  to  the  decrease  of  the  animal,  which  he 
states  as  an  undoubted  fiict,  is  tliat  the  white  hunters  had  been  hunt- 
ing them  80  much  with  guns.  ''  If  so  much  shooting  at  seals  is  not 
stopped  they  will  aoon  be  all  gone." 

James  Claplanhoo  {ibid.,  p.  381),  a  native  Makah  Indian,  evidently 
found  the  business  profitable,  for  he  vas  the  ownorof  the  schooner  Lottie, 
of  28  tons  burden.  Formerly  he  U8<^d  nothing  but  spears  in  hunting 
seals,  but  he  had  since  that  resorted  occasionally  to  the  use  of  a  gun. 
He  says  that  about  one-half  of  all  the  seals  that  he  had  captured  in 
the  Sea  or  on  the  coast  were  full  grown  cows  with  pups  in  them.  In 
1887,  about  the  first  of  June,  ue  went  into  Bering  Sea  in  his  own 


■;■   1 


\L 


vm' 


302 


ARGUMENT   OP   THE    UNITED   STATES. 


!l     I 


schooner,  the  Lottie,  and  hunted  about  sixty  miles  off  the  Islands,  and 
secured  about  700  seals  himself,  all  of  which  were  cows  in  milk.  These 
cows  had  milk  in  their  breasts  but  had  no  pups  in  them.  He  returned  to 
Bering  Sea  in  his  own  boat,  the  Lottie,  in  1889,  and  also  in  1891, 
pnd  sealed  all  the  way  from  100  to  180  miles  from  the  St.  George  and 
St.  Paul  Islands.  The  catch  of  those  two  years  was  about  the  same 
as  those  caught  in  1887,  that  is,  mostly  females  that  had  given  birth 
to  their  young  and  were  in  milk. 

Louis  Culler  (i6id,,p.321).  According  to  him  the  white  hunters  in  1888 
must  have  been  nearly  all  "green  hands,"  for  they  did  not  secure  more 
than  two  or  three  out  of  every  100  shot.  He  was  aboard  the  Otto  in 
1891,  on  board  of  which  were  two  newspaper  correspondents,  King- 
Hall,  representing  the  New  York  Herald,  and  Mr.  McManus,  of  Victoria. 
They  entered  the  sea  through  the  Uuamak  Pass  and  captured  therein 
about  40  seals,  most  all  of  which  had  milk  in  their  breasts.  After  taking 
these  seals  they  returned  to  Victoria,  British  Columbia,  about  the  25th 
of  September. 

John  Dalton  was  a  sailor  and  made  a  sailing  voyage  to  the  North 
Pacific  and  Bering  Sea  in  1885  on  the  schooner  Alexander,  of  which 
Captain  McLean  was  master.  They  left  Victoria  in  January  and  went 
south  to  Cape  Flattery  and  Cape  Blanco,  sealing  around  there  about 
two  mo'.iths,  when  they  went  north,  sealing  all  the  way  up  to  the  Bering 
Sea.  They  had  between  100  and  300  seals  before  entering  the  sea. 
Most  all  of  them  were  females  with  pups  in  them.  They  entered  the  sea 
about  June  and  caught  about  900  seals  in  there,  two-thirds  of  which 
were  mother  seals,  with  their  breasts  full  of  milk.  He  saw  the  milk 
flowing  on  the  decks  when  they  skinned  them. 

Alfred  Dardean  {ibid.,  p.  322),  a  resident  of  Victoria,  British  Columbia, 
and  during  the  two  years  preceding  the  making  of  his  deposition, 
which  was  in  April,  1892,  he  had  been  a  seaman  on  the  schooner  Mollie 
Adams.  They  left  Victoria,  British  Columbia,  on  the  27th  of  May,  1890, 
ar  '  "ommenced  sealing  up  the  coast,  toward  Bering  Sea.  They  entered 
Beiing  Sea  through  the  TJnamak  Pass  about  July  7,  and  sealed 
around  the  eastern  part  of  Bering  Sea  until  late  in  the  fall.  They 
caught  over  900  seals  before  entering  the  sea,  and  the  whole  catch  dur- 
ing that  year  was  2,159  skins.  Of  the  seals  that  were  caught  off  the 
coast  fully  ninety  out  of  every  one  hundred  had  young  pups  in  them. 
The  boats  would  bring  the  seals  killed  on  board  the  vessel,  and  they 
would  take  the  young  pups  out  and  skin  thom.    If  the  pup  was  a  good 


Ci 


SUMMARY   OF   THE   EVIDENCE. 


303 


one  they  would  skin  and  keep  it  for  tLemselves.  He  had  eight  such 
skins  himself.  Four  out  of  five,  if  caught  in  May  or  June,  would  be 
alive  when  they  cut  them  out  of  the  mothers.  They  kept  one  of  tliem 
nearly  three  weeks  alive  on  deck  by  feeding  it  on  condensed  milk.  One 
of  the  men  finally  killed  it  because  it  cried  so  pitifully.  They  got  only 
three  seals  with  pups  in  them  in  the  Bering  Sea.  Most  all  of  them 
were  females  that  had  given  birth  to  their  young  on  the  island,  and  the 
milk  would  run  out  of  the  teats  on  the  deck  when  they  were  skinned. 
They  caught  female  seals  in  milk  more  than  100  miles  off  the  Pribilof 
Islands. 

The  same  witness  states  that  they  lost  a  good  many  seals,  but  he  does 
not  know  the  proportion  that  was  lost  to  the  number  killed.  Some  of 
the  hunters  woidd  lose  four  out  of  every  six  killed.  They  tried  to  shoot 
them  while  asleep,  but  shot  all  that  came  in  their  way.  If  they  killed 
them  too  dead  a  great  many  would  sink  before  they  could  get  them, 
and  these  were  lost.  Sometimes  they  could  get  some  of  them  that  had 
sunk  by  the  gaff  hook,  but  they  could  not  get  many  that  wuy.  A  good 
many  were  wounded  and  escaped  only  to  die  afterward. 

Frank  Davis  {ibid.,  p.  383),  a  native  Indifin  of  the  Makah  tribe,  was 
sealing  in  the  Bering  Sea  in  1889.  He  says,  agreeing  in  this  with  all  the 
other  witnesses,  that  nearly  all  of  the  full-grown  cows  along  the  coast 
have  pups  in  them,  but  the  seals  that  he  caught  in  Bering  Sea  were 
most  all  cows  in  milk. 

Jeff  Davis  {ibid.,  p.  384),  and  also  a  native  Makah  Indian,  says  that 
most  of  the  seals  that  were  captiu^ed  there  that  season — that  is,  in 
1889 — were  cows  giving  milk. 

Capt.  Douglass  {ibid.,  p.  420):  His  testimony  is  that  a  very  large  pro- 
portion of  the  seals  killed  along  the  coast  and  at  sea,  from  Oregon  to 
the  Aleutian  Islands,  are  female  seals  with  pups;  in  his  judgment  not 
less  than  95  per  cent,  as  has  been  quoted  heretofore.  He  also  says  that 
the  proportion  of  female  seals  killed  in  Bering  Sea  is  equally  large. 

Peter  Duffy  {ibid.,  p.  41).  By  occupation  a  seaman  on  board  the  Sea 
Otter,  Captain  Williams,  master.  They  left  San  Francisco  and  fished 
up  the  coast  until  they  entered  Bering  Sea  in  July,  and  sealed 
about  the  sea  until  they  were  driven  oft  by  the  revenue  cutter  Gorwin. 
From  there  they  went  to  the  Copper  Islands.  The  whole  catch 
amounted  to  nine  hundred  skins,  and  most  of  them  were  killed  with 
rifles.  They  only  got  one  out  of  about  eight  that  they  shot  at,  and 
they  were  most  all  females  giving  milk  or  in  pup.    When  they  cut  the 


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304 


iROUMENT  OP  THE    UNITED    STATES. 


hide  off  jon  could  see  the  milk  running  from  the  breasts  of  the  seals. 
The  second  year  they  were  more  fortunate  and  got  over  1,300  skins; 
some  of  them  were  cows  with  pups  in  them,  and  almost  all  of  the  rest 
were  cows  giving  milk,  and  some  of  the  latter  were  killed  as  far  from 
the  rookeries  as  Unimak  Pass. 

William  Fra8er(page  426),  of  San  Francisco,  had  made  three  trips  to 
the  North  Pacific  and  Bering  Sea  within  the  last  six  years.  His  busi- 
ness was  that  of  a  laborer;  he  acted  as  a  boat-puller.  They  used  shot- 
guns and  killed  about  300  seals  in  the  North  Pacific.  Most  of  the 
females  killed  had  unborn  pups  or  were  cows  giving  milk.  The  next 
trip  that  he  made  was  on  the  Vanderbilt.  They  did  not  enter  the 
Bering  Sea  on  that  trip  either.  They  got  about  350  seals,  almost  a" 
females.  Finally  he  made  a  trip  on  the  G.  O.  White,  but  does  not  know 
if  he  was  on  the  American  side  or  not.  They  killed  about  600  seals  on 
that  trip,  nearly  all  females.  He  noticed  when  tbey  skinned  them  that 
they  were  females  in  milk,  as  the  milk  would  run  from  their  breasts  on 
to  the  deck. 

John  Fyfe  {ibid.,  p.  429),  of  San  Francisco,  a  sealer  and  boat-puller  on 
the  schooner  Alexander,  McLean,  master.  They  entered  Bering  Sea 
about  April  and  got  795  in  there,  the  largest  part  of  which  were  mother 
seals  in  milk.  When  tbey  were  skinning  thorn  the  milk  would  run  on 
the  deck.  Some  were  killed  50  to  100  miles  off  the  seal  Islands.  When 
they  shot  the  seals  dead  they  would  sink  and  they  could  not  get  them. 

Thomas  Gibson  {ibid.,  p.  431)  had  been  engaged  in  sealing  for  ten 
years.  He  gives  his  experience  in  detail  and  thenumber  of  seals  that  he 
killed  in  each  season.    He  says : 

I  did  not  pay  miich  attention  to  the  sex  of  seals  we  killed  in  the 
North  Pacific,  but  know  that  a  great  many  of  them  were  cows  that  had 
pups  in  them,  and  we  killed  most  of  them  while  they  were  asleep  on  the 
water.  I  know  that  Cully  75  per  cent  of  those  we  canght  in  the  Bering 
Sea  were  cows  in  milk.  We  used  rifles  and  shot  guns  and  shot  them 
when  feeding  or  asleep  on  the  water.  An  experienced  hunter,  like 
myself,  will  get  two  out  of  three  tliat  he  kills,  but  an  ordinary  hunter 
would  not  get  niore  than  one  out  of  every  three  or  four  that  he  kills. 

Arthur  Griffin  {ibid.,  p.  325),  a  seafaring  man  who  resides  at  Victoria, 
British  Columbia,  sailed  from  that  place  on  February  11, 1889,  as  a 
boat-puTler  on  the  sealing  schooner  Ariel,  Bucknian,  master.  She 
carried  six  hunting  boats  and  one  stern  boat  and  had  a  white  crew 
who  used  shotguns  or  rifles  in  hunting  seals.  They  began  sealing  off 
the  northern  coast  of  California  and  tbjlowed  the  sealing  "^erd  north- 
ward, capturing  about  700  seals  in  the  North  Pacific  Ocean,  two-thirds 


SUMMARY   OF   THE   EVIDENCE 


305 


of  which  were  females  with  pup;  the  balance  were  young  seals,  both 
male  and  female.  They  entered  Bering  Sea  on  the  13th  of  July, 
through  the  Uniniak  Pass  and  captured  between  900  and  1,000  seals 
therein,  most  of  which  were  females  in  milk.  They  returned  to  Victoria 
on  the  31st  of  August,  1889. 

It  will  be  observed  here  that  Arthur  GriflBn's  experience  and  success 
would  not  lead  him  probably  to  object  to  the  modus  operandi  suggested 
by  the  British  Commissioners.  His  operatiims  by  which  900  or  a  1,000 
seals,  mostly  females  in  milk,  were  secured  in  the  brief  space  of  six 
weeks,  could  be  carried  on  not  only  with  equal  propriety,  but  with  the 
additional  advantage  of  being  lawful. 

His  experience  in  1889  was  not  exceptional.  He  went  out  again  in 
1890  in  the  E.  B.  Marvin^  McKiel,  master.  They  again  captured  be- 
tween 900  and  1,000  seals  on  the  coast,  most  of  which  were  females 
with  pups.  They  eutered  the  sea  on  July  12  through  Unimak  Pass 
and  captured  about  800  seals  in  those  waters,  about  90  per  cent  of 
which  were  females  in  milk.  His  experience  was  that  a  good  hunter 
will  often  lose  one-third  of  the  seals  he  kills.  A  poor  hunter  will  lose 
two-thirds  of  those  he  shoots.  On  an  average  hunters  will  lose  two 
seals  out  of  three  of  those  they  shoot. 

M.  A.  Healey  {ibid.,  p.  27).  Capt.  Healey,  an  officer  in  the  United 
States  Revenue  Marine  service,  on  duty  for  nearly  the  whole  of  twenty- 
five  years  in  the  waters  of  the  North  Pacific,  Bering,  and  Arctic  seas. 
He  speaks  from  experience  and  says: 

My  own  observation  and  the  information  obtained  from  seal-hunters 
convince  nic  that  fully  90  jier  cent  of  the  seals  found  swimming  in  tne 
Bering  Sea  daring  the  breeding  seas(m  are  females  in  search  of  food, 
and  the  slaughter  results  in  the  destruction  of  her  young  by  starva- 
tion. I  firmly  believe  tliat  the  fur-seal  industry  at  the  Pribilof  Islands 
(!an  be  saved  from  destruction  oidy  by  a  total  prohibition  aguinst  kill- 
ing seals,  not  only  in  the  waters  of  Bering  Sea,  but  also  during  their 
annual  immigration  northward  in  the  Pacific  Ocean. 

This  coiu'lnsion  is  based  upon  the  well-known  fact  that  the  mother 
seals  are  slaughtered  by  the  thousan<ls  in  the  North  Pacific  while  on 
their  way  to  the  islands  to  give  birth  to  their  young,  and  extinction  must 
necessarily  come  to  any  species  of  animal  where  the  fen)ale  is  continu- 
ally hunted  and  killed  during  the  period  required  for  gestation  and 
rearing  of  her  young;  as  now  practiced  there  is  no  respite  to  the 
female  seal  from  the  relentless  i)ursnit  of  the  seal-hunters,  for  the 
schooners  close  their  season  with  the  departure  of  the  seals  from  the 
northern  sea  and  then  return  home,  refit  immediately  ,  and  start  out 
ui)on  a  new  voyage  in  February  or  March,  commencing  n])on  the  coast 
of  California,  Oregon,  and  Washington,  following  the  seals  northward 
as  the  season  advances  into  the  Bering  Sea. 
14749 20 


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ARGUMENT   OF   THE   UNITED   STATES. 


James  Kcan  {ibid.,  p.  448),  »  resident  of  Victoria,  British  Columbia, 
and  seaman  and  seal  hunter,  gives  his  exi)erience.  He  went  seal-hunt- 
ing in  18S9  on  the  schooner  Oscar  and  Jlattie.  He  left  Victoria  in  the 
latter  part  of  February  and  went  off  south  to  the  Columbia  Eiver, 
and  commenced  sealing  off  there  and  followed  the  herd  along  the  coast 
up  to  Bering  Sea,  arriving  there  some  time  in  June,  They  captured 
somewhere  about  500  seals  before  entering  the  sea.  There  were  a  good 
many  females  among  them.  The  old  females  had  young  pups  in  them. 
He  saw  them  taken  out  and  a  good  many  of  them  skinned.  They 
entered  the  sea  and  caught  about  1,000  in  there.  Sometimes  tliey  were 
over  150  miles  off  the  seal  islands;  sometimes  they  were  nearer.  He 
p;  .id  no  attention  to  the  proportion  of  females,  but  he  knows  that  they 
skinned  a  great  many  that  were  giving  milk  because  the  milk  would 
run  from  their  breasts  onto  the  deck  while  they  were  being  skinned. 
They  killed  mother  seals  in  milk  over  100  miles  from  the  seal  islands. 
They  generally  got  them  when  they  were  asleep  on  the  water.  He 
went  out  again  in  the  Walter  Bich  in  1890,  with  very  much  the  same 
experience.  He  thinks  that  he  got  half  of  what  he  killed  and  wounded, 
but  he  did  not  believe  that  the  greeu  hunters  get  more  than  one  out  of 
every  four  or  five  that  they  kiU. 

For  detailed  and  circumstantial  evidence  that  the  proportion  of 
females  taken  to  males  was  enormous,  and  that  nearly  all  of  these  when 
taken  in  Bering  Sea  were  nursing  cows,  see:  William  Hermann,  page 
445;  ^Norman  Hodgson,  page  366;  O.  Holm,  page  366;  Alfred  Irving, 
page  356 ;  Victor  Jacobson,  page  328. 

James  Jamieson,  {ibid.,  p.  320) :  This  witness,  Jamieson,  had  been  sail- 
ing-master of  several  schooners  and  had  spent  six  years  of  his  life  seal- 
ing. Ho  testified  that  he  always  used  a  shot-gun  for  taking  seals;  that 
over  half  were  lost  of  those  killed  and  wounded.  A  large  majority  of  the 
seals  taken  on  the  coast  were  cows  with  pups.  Once  in  a  while  an  old 
bull  is  taken  in  the  North  Pacific  Ocean,  No  discrimination  was  used 
in  killing  seals,  but  everything  was  shot  that  came  near  the  boat  in  the 
shape  of  a  seal.  The  majority  of  seals  killed  in  Bering  Sea  are  females. 
He  had  killed  female  seals  himself  75  miles  from  the  islands,  and  they 
were  full  of  milk. 

To  the  same  effect  as  to  the  large  proportion  of  females  nursing  their 
young,  see  James  Kennedy,  {ibid.,  p.  449). 

James  Kiernan,  who  had  been  engaged  in  sealing  since  1843: 

My  experience,  [he  says,]  has  been  that  the  sex  of  the  seals  usually 
killed  by  hunters  employed  on  vessels  under  my  command,  both  in  the 


SUMMARY   OF   THE   EVIDENCE. 


307 


North  Pacific  Ocean  and  Bering  Sea,  were  cows.  I  should  say  not 
less  than  80  per  cent  of  those  caught  each  year  were  of  that  sex.  I 
have  observed  that  those  killed  in  the  North  Pacific  were  mostly 
females  carrying  their  young,  and  were  generally  cauglit  while  asleep 
on  the  water^  while  those  taken  in  the  Bering  Sea  were  nearly  all 
mother  seals  in  milk,  that  had  left  their  young  and  were  in  search  of 
food.  My  experience  convinces  me  that  a  large  percentage  of  the 
seals  now  killed  by  shooting  with  rifles  and  shotguns  are  lost.  My 
estimate  would  be  that  two  out  of  every  three  killed  are  lost. 

See  the  testimony  of  Francis  B.  King-Hall,  the  joiimalist. 

Edward  Nighl  Lawson,  a  resident  of  St.  Pauls,  Kadiak  Island, 
Alaska  {ibid.,  p.  221),  killed  females  in  milk  in  Uniraak  Pass,  and  even 
out  in  the  Pacific  Ocean  200  miles  from  land.  They  can  not  distinguish 
between  the  sex  of  fur-seals  in  the  water;  on  the  contrary,  everything 
in  sight  is  taken,  if  possible,  except  large  bulls,  whose  skins  are  use- 
less. He  recommends,  in  order  to  prevent  the  extermination  of  the 
ftir-seal  species,  that  a  close  season  in  the  North  Pacific  Ocean  and  in 
Bering  Sea  should  be  established  and  enforced  from  April  1  to  No- 
vember 1  in  each  year. 

Abial  P.  Loud  {ibid.,  p.  37),  a  resident  of  Hampden,  Me.,  special  as- 
sistant treasury  agent  for  the  seal  islands  in  1885, 1886, 1888,  and  1889. 

William  Mclsaacs  {ibid.,  p.  450). 

Capt.  James  E.  Lennan  {ibid.,  p.  369),  master  mariner  of  eight  years* 
experience. 

William  McLaughlin  {ibid.,  p.  451),  boat-puller  on  board  the  Triumph. 

Robert  H.  McManus  {ibid.,  p.  335),  a  journalist,  whose  qualifications 
have  been  spoken  of  heretofore,  gives,  on  pp.  337  and  338,  extracts  from 
his  diary.    This  deposition  should  be  read  in  whole. 

Patrick  Maroney  {ibid.,  p.  464),  of  San  Francisco,  a  seaman, 

Henry  Mason  {ibid.,  p.  465),  of  Victoria,  British  Columbia. 

Moses  {ibid.,  p.  309),  a  native  Nitnat  Indian,  gives  his  experience  in 
1887on  the  schooner  Ada.  They  sealed  around  Unalaska,  but  did  not  go 
to  the  Prlbilof  Islands.  They  caught  1,900  seals.  Most  all  of  them  were 
cows  in  milk,  but  when  they  first  entered  the  sea  they  killed  a  few  cows 
that  had  pups  in  them.  The  next  year  they  secured  only  800,  and  the 
year  following  eight  or  nine  hundred.  The  seals  caught  were  mostly 
cows  with  milk. 

John  O'Brien  {ibid.,  p.  470),  of  San  Francisco,  a  longshoreman,  made 
a  sealing  voyage  to  the  North  Pacific  and  Bering  Sea  on  the  Schooner 
Alexander,  which  sailed  from  Victoria  in  Jantiary,  1885.  He  was  a  boat 
puller.    They  headed  north  into  the  Bering  Sea  which  they  entered  at 


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ARGUMENT  OF  THE  UNITED  STATES. 


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the  latter  end  of  May.  Up  to  that  time  they  had  caught  250  or  800 
seals  of  which  80  per  cent  were  females.  After  they  entered  the  Ber- 
ing Sea  they  caught  about  700  seals,  most  all  of  them  being  females  in 
milk.  He  also  shows  that  there  is  a  very  considerable  waste  of  life 
from  killing  or  wounding  and  losing  animals. 

JohnOlsen,  {ibid.,  p.  471)  of  Seattle,  Wash.,  a  ship-carpenter,  entered 
the  Bering  Sea  about  the  bth  of  June,  1891,  ou  board  the  Labrador, 
Capt.  Whiteleigh,  commander.  They  were  ordered  out  of  the  sea  on  the 
9th  of  June.  In  going  up  the  coast  to  Unimak  Pass  they  caught  about 
400  seals,  mostly  females  with  young,  and  put  their  skins  on  board  the 
Danube,  an  English  steamboat  at  Allatack  Bay,  and  after  they  got  into 
the  Bering  Sea  caught  about  220.  After  entering  the  sea  they  got  one 
female  with  a  very  large  pup,  which  he  took  out  alive  and  which  he 
kept  for  three  or  four  days  when  it  died  as  it  would  not  eat  anything. 
All  the  others  had  given  birth  to  their  young  and  their  breasts  were 
full  of  milk.  He  also  states  how  large  a  loss  is  made  by  failure  to 
recover  the  animals  that  are  killed. 

Osly  {ibid.,  p.  391),  a  native  Makah  Indian,  went  to  the  Bering  Sea  in 
1886  on  board  the  Favorite,  McLean,  master.  They  captured  about  4,700 
seals,  almost  all  of  which  were  cows  giving  milk.  Four  years  before 
that  he  had  gone  to  Bering  Sea  as  a  hunter  in  the  sealing  schooner 
Challenger,  Williams,  master.  There  were  3  white  men  in  each  boat 
and  2  Indians  in  a  canoe.  We  caught  about  3,000  seals,  most  of  which 
were  cows  in  milk. 

William  Short  {ibid.,  p.  348),  of  Victoria,  British  Columbia,  is  by  oc- 
cupation a  painter.  On  January  14,  1890,  he  sailed  as  a  boat-puller 
from  Victoria  on  the  British  sealing  schooner  Maggie  Mac,  Dodd,  mas- 
ter. She  carried  six  sealing  boats  that  were  manned  by  three  white 
men  each,  who  used  breech-loading  shotguns  and  rifles.  On  the  12th 
of  July  they  entered  the  sea  through  the  Unimak  Pass.  Before  this 
they  had  captured  1,120  seals  on  the  coast.  They  lowered  their  boats 
on  the  13th  and  captured  about  2,093  seals  in  those  waters  and  then 
returned  to  Victoria  on  the  19th  of  September.  In  July,  1891,  he  sailed 
out  of  the  port  of  Victoria  as  a  hunter  on  the  British  sealing  schooner 
Otto,  O'Reily,  master.  Failing  to  procure  the  Indian  crew  of  sealers 
that  they  had  expected,  they  returned  to  Victoria,  after  proceeding  up 
the  coast,  on  the  1st  of  August.  While  cruising  along  the  coast  their 
principal  catch  was  females  M'ith  i)ups.  Fully  90  per  cent  of  all  seals 
secured  by  them  while  in  the  Bering  Sea  were  cows  with  milk;  that 
is  to  say,  out  of  2,093  all  but  about  300  were  nursing  mothers. 


SUMMARY    OF   THE    EVIDENCE. 


309 


Profitable  as  the  business  appears  to  Lave  beeu  to  Mr.  Short,  he  is 
caudid  enough  to  say  that  in  his  opinioii — 

It  is  a  shame  to  kill  the  female  seal  before  she  has  p^iven  birth  to  her 
younfj.  Pelagic  sealing  in  the  North  Pacific  Ocean  before  the  middle 
of  June  is  very  destructive  and  wasteful  and  should  be  stop])ed.  •  •  • 
Sealing  in  th*^  sea  should  be  prohibited  until  such  a  time  as  the  pup 
may  have  grown  to  the  age  at  which  it  may  be  able  to  live  without 
nurse  from  its  mother. 

James  Sloan  {ibid.,  p.  477),  of  San  Francisco,  by  occupation  a  sea- 
man, made  three  voyages  to  Bering  Sea,  in  1871,  in  1884,  and  in  1889. 
A  great  many  of  the  females  that  they  killed  had  their  breasts  full  of 
milk,  which  would  run  out  on  the  deck  when  they  skinned  them.  In 
1889  they  went  to  the  Okhotsk  Sea  and  sealed  there  about  two 
months.  They  got  about  500  seals,  of  which  more  than  one-half  wece 
females,  and  the  most  of  them  had  pups  in  them.  They  entered  Bering 
Sea  about  the  17th  of  May  and  caught  about  900  seals.  Most  of  them 
were  mother  seals. 

Mr.  Sloan  predicts  an  early  extermination  of  the  seals  unless  the 
destructive  processes  are  stopped.  As  he  says,  the  hunters  kill  them 
indiscriminately  and  all  the  hunters  care  about  is  to  get  a  skin. 

See,  also,  the  testimony  of  Fred  Smith  {ibid.,  p.  349),  of  Victoria,  a 
seal  hunter. 

Of  Joshua  Stickland  {ibid.,  p.  349),  also  of  Victoria,  a  seal  hunter 
who  declares  that  out  of  111  seals  killed  by  him  in  the  last  year  he 
killed  but  three  bulls. 

John  A.  Swain  {ihid.,  p.  350),  of  Victoria,  a  seaman,  gives  his  experi- 
ence in  1891.  He  was  on  board  the  steamer  Thistle,  Nicherson  master. 
They  caught  about  100  seals.  They  were  all  females  that  had  given 
birth  to  their  young.  In  1892  they  caught  270,  most  of  them  pregnant 
females  which  were  caught  along  the  coast. 

Theodore  T.  Williams  {ibid.,  p.  491),  an  intelligent  gentleman,  by  pro- 
fession a  journalist,  employed  as  city  editor  on  the  San  Francisco  liX- 
aminer,  makes  a  very  interesting  deposition.  In  pursuit  of  his  pro- 
fession he  had  not  only  had  occasion  to  make  extended  inquiries  into 
the  fur-sealing  industry  of  the  Aleutian  Islands  and  the  North  Pacific, 
but  had  gone  to  the  North  and  had  made  a  complete  and  exhaustive 
examination  of  the  open-sea  sealing,  its  extent,  probable  injury,  etc. 
The  perusal  of  the  whole  of  this  very  interesting  document  is  recom- 
mended. As  the  result  of  his  investigation  in  the  Bering  Sea  and 
North  Pacific  he  asserts  the  following  facts: 


bill, 


310 


ARGUMENT  OP  THE  UNITED  STATES. 


First.  That  95  per  cent  of  all  the  seals  killed  in  the  Bering  Sea  are 
females. 

Second.  That  for  every  three  sleeping  seal3  killed  or  wounded  in  the 
water  only  one  is  recovered. 

Third.  For  every  six  traveling  seals  killed  or  wounded  in  the  water 
only  one  is  recovered. 

Fourth.  That  95  per  cent  at  least  of  all  the  fiemale  seals  killed  are 
either  in  pup  or  have  left  their  newly-born  pup  on  the  islands,  while 
they  have  gone  out  into  the  sea  in  search  of  food. 

The  result  is  the  same  in  either  case.  If  the  mother  is  killed  the  pup 
on  shore  will  linger  for  a  few  days,  some  say  as  long  as  two  or  three 
weeks,  but  will  inevitably  die  before  winter.  All  of  the  schooners  prefer 
to  hunt  around  the  banks  where  the  female  seals  are  feeding,  to  attempt 
to  intercept  the  male  seal  on  their  way  to  and  from  the  hauling  grounds. 

This  overwhelming  and  practically  uncontradicted  evidence  certainly 
justifies  the  statement  of  the  British  Commissioners  as  to  the  "remark- 
able  agreement"  u[K)n  the  subject.  How  the  facts  could  be  disputed 
without  impeaching  witnesses  taken  from  every  class  of  society  where 
knowledge  could  be  found,  it  is  impossible  for  us  to  coi\jecture.  OfQ- 
cers  from  the  Navy  of  the  TTnited  States;  British  sea  captains  as  well 
as  American  seamen,  journalists,  natives,  all  concur  as  to  the  fearful 
destruction  which  is  going  on.  It  is  notpossible  to  read  the  testimony, 
even  making  far  more  allowance  for  exaggeration  than  the  nature  of  the 
case  will  justify,  without  reaching  the  conclusion  that  pelagic  sealing 
must  be  stopped  or  all  hope  of  preserving  the  herd  abandoned.  Pallia- 
tion, compromise,  and  mitigating  processes  are  out  of  the  question. 
The  outrage  must  be  cut  at  the  root  and  its  continuance  made  impos- 
sible. Females  that  are  pregnant  eleven  months  of  the  year,  and  nurs- 
ing mothers  three  or  four  months,  must  be  left  undisturbed,  and  if,  as 
all  agree,  it  is  impossible  to  discriminate  in  pelagic  sealing  between 
the  mothers  and  the  males,  then  the  other  alternative  is  inexorably 
before  us,  and  that  is  absolute  interdiction. 

(g)  The  principal  fact  that  a  decrease,  alarming  and  continuous,  has 
been  noted,  is  by  the  proofs  and  admissions  made  evident.  It  required 
no  proofs,  as  it  is  conceded  by  the  Commissioners  on  both  sides  to  exist, 
and  it  is  for  the  purpose  of  remedying  the  evil  that  this  Arbitration 
has  been  entered  into.  It  is  claimed  on  the  part  of  the  United  States 
that  the  diminution  which  threatens  extermination  is  wholly  due  to 
pelagic  sealing,  a  practice  which  does  not  permit  the  hunter  to  spare  the 
gravid  or  nursing  females;  while  at  the  same  time,  and  cooperating 
with  this  principal  source  of  undue  destruction,  the  methods  used  by 
the  hunters  frequently  result  in  the  death  and  simultaneous  loss  of  the 
animal.    It  need  hardly  be  said,  that  prima  Jaciej  to  sucli  a  system 


SUMMARY    OF   TUE   EVIDENCE. 


311 


must  be  attributable  tbe  undue  destruction  which  it  is  desired  to 
prevent.  Those  who  undertake  the  defeuse  of  such  methods  aud  of 
such  a  system  can  not  complain  if  the  burden  of  proof  is  phiced  upon 
them  of  justifying  a  course  which  has  received  the  condemnation 
of  mankind.  It  is  difficult  to  percjeive  any  good  reason  why  the 
ordinary  and  usual  rules  that  have  always  been  followed  as  essen- 
tial to  the  preservation  ofa  species  should  be  dispensed  with  in  the  case 
of  the  fur-seals.  It  matters  little  whether  it  is  an  absurdity  or  scien- 
tifically correct  to  designate  them  as  essentially  or  naturally  or  wholly 
pelagic.  Important  controversies  between  enlightened  nations  will  not 
turn  upon  nice  questions  of  scientific  nomenclature.  The  animal  whoso 
existence  is  at  stake  is  useful  to  man,  and  it  is  therefore  the  interest  and 
policy,  as  it  will  be  to  the  honor  of  both  nations,  to  preserve  it.  The 
time  has  long  since  gone  by  when  the  selfishness  of  nations  may  have 
been  the  controlling  factor  in  such  debates.  But  were  it  otherwise, 
Great  Britain  will  suffer  as  seriously  as  the  United  States  from  the  ex- 
termination of  a  herd  of  seals  which  the  United  States  alone  can  pre- 
serve, which  the  United  States  alone  can  foster,  guard,  and  protect,  be- 
cause it  happens  that  the  vital  functions  of  procreation  aud  delivery 
are  performed  on  its  soil.  The  United  States  may  and  will  discharge 
this  duty,  to  its  own  people  and  to  the  world,  provided  its  efforts  are 
not  baffled  and  its  beneficent  action  neutralized  by  the  Indiscriminate 
slaughter  of  which  it  complains. 

That  the  Government  of  the  United  States  has  power,  both  in  law 
and  in  fact,  within  the  limits  of  its  own  jurisdiction  no  one  disputes,  but 
the  suggestion  is  made  that  the  methods  adopted  on  the  islands  which 
constitute  the  only  land  resort  of  the  seals  are  imperfect  in  practice 
while  i)erfect  in  theory.  Certain  objections  are  made  to  show  that 
while  care  is  taken  to  preserve  the  female  from  destruction,  so  many 
young  males  have  been  slaughtered  that  the  necessary  vitality  is 
lacking  in  the  service  of  the  females.  Thus  it  is  claimed  that  the  two 
sources  combine  to  endanger  the  permanency  of  the  seal  family, 
admitted  and  undue  destruction  at  sea  and  unwise  or  excessive  killing 
on  the  islands.  Conceding  for  the  sake  of  argument,  and  only  for  the 
argument,  that  this  is  true,  it  must  be  apparent  that  the  necessity  of 
preventing  pelagic  sealing  is  only  the  more  pressing,  in  the  interest  of 
the  industry  which  it  is  desired  to  conserve.  The  methods  of  the 
United  States  may  be  faulty,  but  it  should  not  be  forgotten  that  the 
Government  is  especially  interested    in    maintaining    an    industry 


!»:i-i 


i" 


.H-41 


312 


ARGUMENT   OF   THE   UNITED   STATES. 


which  belongs  to  itself.  The  faults  impntcd  are,  after  all  is  Bald, 
faults  of  detail  and  execution,  which  do  not  in  any  manner  affect  the 
principle  adopted.  They  are  susceptible  of  remedy,  and  it  is  idle  and 
absurd  to  suppose  that  a  valuable  commente,  susceptible  of  expansion 
by  Judicious  methods,  will  bo  wantonly  suffered  to  go  to  ruin.  Self- 
interest,  if  no  higher  motive,  may  bo  trusted  to  improve  the  means  now 
in  use,  in  so  far  as  they  may  require  improvement;  experience  will 
constantly  throw  its  light  upon  the  best  means  of  performing  the  duty, 
while  the  apprehension  of  loss  will  stimulate  the  efforts  of  those  most 
nearly  concerned  iu  the  financial  success  of  the  business  now  carried 
on  at  the  Islands. 

But  it  is  not,  in  fact,  admitted  that  any  such  objections  exist.  The 
number  of  males  killed  did  turn  out  to  be  excessive  and  was  therefore 
reduced.  This,  however,  only  became  manifest  after  the  ruthless  de- 
struction at  sea  had  begun  to  be  felt  on  the  liflands.  That  destruction 
is  only  limited  by  the  capacity  of  the  destroyers.  They  profess  no 
scruples  and  they  show  no  mercy.  Their  "legitimate  business"  requires 
courage  and  skill,  it  is  said,  but  it  is  incompatible  with  the  ordinary 
feelings  of  humanity.  Present  gain  is  the  only  object  in  view.  The 
poachers'  horizon  is  limited  bj  the  season's  catch.  Is  it  not  an  insult 
to  common  sense  to  deny  that  He  >>ursuit  of  pregnant  females  and  the 
slaughter  of  nursing  mothers  o^i  their  feeding  grounds  are  wholly,  abso- 
lutely, brutally  inconsistent  v*xth  any  system  that  requires  moderation, 
self-denial  and  humanity?  Leaving  out  all  other  questions  as  irrelevant, 
is  it  not  enough  for  the  United  States  to  say,  "We  can  preserve 
for  the  benefit  of  the  world  the  animal  which  your  poachers  are  destroy- 
ing; you  can  only  doit  by  a  prohibition  of  methods  which  you  would 
not  for  an  instant  tolerate  in  analogous  cases  within  your  jurisdiction. 
Of  what  avail  are  small  criticisms  upon  our  system  of  protection  when 
we  are  so  largely  concerned  in  carrying  them  to  the  point  of  the  high- 
est perfection?" 

When  suggestions  are  asked  as  to  any  other  way  of  repressing  or 
circumscribing  this  destructive  slaughter,  the  British  Commissioners 
propose  as  a  remedy  that  Bering  Sea  be  closed  when  sealing  is  un- 
profitable, and  opened  during  the  season  when  the  horrors  and  the 
profits  of  the  business  both  reach  their  climax.  The  language  of  the 
Counter  Case  of  the  United  States,  commenting  upon  this  extraordi- 
nary suggestion,  is  couched  in  singularly  moderate  terms; 


SUMMARY    OF    TIIK    EVIDKNCE. 


813 


Tlio  rocommojidafioti  by  tlioCoinmissimicrs  of  a  sorios  of  rppnlntions 
sucli  as  those  aliove  <'onsi(k're(l,  is  clciiily  indicative  of  the  l)ias  and 
l)aitisiiii  .spirit  wliich  appear  iu  uearly  every  suctiou  of  their  Keport 
(p.  128). 

This  subject  is  treated  at  length  in  the  Counter  Case  (p.  125)  and 
also  in  another  part  of  this  argument  {ante.  pp.  190-214);  it  need  not 
be  dwelt  upon  here. 

Iu  conclusion  it  is  submitted,  as  the  facts  show  that  pelagic  sealing 
by  its  very  nature  leads  to  and  necessarily  depends  for  success  upon 
indiscriminate  slaughter,  that  the  females  killed  are,  with  rare  ex- 
ceptions, either  gravid  or  nursing  mothers  and  form  a  large  propor- 
tion of  the  pelagic  catch;  that  the  slaughter  of  a  breeding  female  of 
necessity  involves  the  destruction  of  the  nursing  pup  at  home  as  well 
as  of  the  unborn  fetus,  thus  destroying  three  animals  at  one  blow; 
that  the  only  practical  and  intelligent  method  of  preserving  the  race 
is  to  stop  pelagic  sealing,  leaving  the  United  States  to  continue  and 
to  improve,  if  possible,  those  measures  best  cahsulated  to  secure  an 
end  which  it  is  to  the  interest  of  both  parties  to  reach.  In  other 
words,  the  experience  of  men  has  taught  that  the  preservation  of  the 
breeding  female  was  and  is  the  only  means  of  preserving  and  per- 
petuating the  race.  Until  it  has  been  shown  that  the  animal  does 
not  share  the  conditions  of  other  animals  born  and  suckled  on  land, 
the  usual  means  of  preserving  them  must  be  adopted. 

Unless  these  propositions  are  conceded,  the  liope  of  preserving  the 
fur  seals  of  the  Pribilof  Islands  must  be  abandoned.  Present  greed  is 
not  controlled  by  possibilities  of  remote  loss.  The  South  Sea  seals  and 
their  fate  have  taught  the  world  a  lesson  which  the  United  States  are 
seeking  to  improve  in  the  common  interest  of  mankind.  They  will 
succeed  if  this  High  Tribunal  by  its  decision  shall  prevent  practices 
repugnant  to  the  growing  humanity  of  the  age. 


The  foregoing  statement  of  facts  has  been  prepared  in  part  with  the 
aid  of  a  collated  edition  of  the  testimony  presented  with  the  Case  of 
the  United  States,  and  which  is  herewith  submitted  to  the  Tribunal  of 
Arbitration  as  an  Appendix  to  the  printed  argument  of  counsel. 

F.  K.  COUDEET. 


um 


■'i,t 


!    '' 


W:^ 


'\r 


if;.' 


I, 


'it 


.:..| 


■  ■iiii 

■M 

HI, 

:,ip 


s 


lii 


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3U 


ASGUMESiX  OF  TU£   UNITED  STATES. 


SEVENTH. 

POINTS  IN  REPLY  TO  THE  BRITISH  COUNTER  CASB. 

Since  the  preparation  of  the  Argument  on  the  part  of  the  United 
States,  on  the  facts  as  so  far  appearing,  the  British  Counter  Case  has 
been  delivered.  It  contains  a  large  quantity  oi"  matter  concerning  the 
nature  and  habits  of  the  fur-seals,  the  metliods  and  characteristics  of 
pelagic  sealing,  and  the  methods  of  dealing  with  the  seals  at  the  breed- 
ing places,  which  matter,  so  far  as  it  is  relevant  at  all,  is  relevant  to 
the  question  of  the  alleged  property  interest  and  rights  of  defense  of 
the  United  States,  and  to  the  regulations  which  may  be  necessary  in 
order  to  prevent  the  extermination  of  the  animal. 

This  matter  is  accompanied  with  a  protest  (page  3),  that,  so  far  as 
matter  relevant  only  to  the  question  of  regulations  is  concerned,  its 
introduction  before  the  Arbitrators  is  at  present  improper,  and  that  it 
has  been  incorporated  into  the  Counter-Case  without  prejuaice  to  the 
contention  on  the  part  of  Great  Britain ;  that  the  Arbitrators  can  not 
consider  the  question  of  regulations  until  they  have  adjudicated  upon 
the  five  questions  enumerated  in  Article  vi  of  the  treaty. 

The  counsel  for  the  United  States  conceive  that  there  is  no  ground 
upon  which  such  an  interpretation  of  the  treaty  can  be  sunportcd. 
That  interpretation  assumes  that  there  are  to  be  two  separate  and 
distinct  hearings  and  two  separate  and  distinct  submissions  of  proofs. 
There  is  absolutely  nothing  in  the  treaty  to  warrant  such  a  view,  and 
the  distinct  iH'ovision  respecting  the  Cases  and  Counter  Cases,  their 
contents,  the  tinieswhen  they  are  to  be  submitted,  the  preparation  of  the 
arguments,  the  times  wlien  tliey  are  to  be  submitted,  when  the  hearing 
is  to  begin,  and  when  the  matter  is  finally  to  be  decided,  all  point  to 
the  conclusion  that  there  is  to  be  but  one  hearing,  one  submission  of 
evidence,  one  argument,  and  one  dotermination. 

It  is  indeed  contemplated  by  the  treaty  that  in  a  certain  contingency 
it  may  not  be  necessary  for  the  Tribunal  to  consider  the  question  of 
concurrent  regulations.  This,  however,  simply  involves  a  condition 
exceedingly  common  in  judicial  controversies,  that  several  questions 


POINTS   IN   REPLY   TO   THE   BRITISH   COUNTER   CASE. 


315 


may  be  made  the  subject  of  trial  at  the  same  time,  and  yet  tlie  nature 
of  the  decision  be  such  as  to  dispense  with  the  necessity  of  determine 
ing  all  of  them. 

Assuming  that  the  interpretation  of  the  treaty  insisted  tlpon  by  the 
counsel  of  the  United  States  is  the  correct  one,  the  procedure  adopted 
o..  the  part  of  the  British  Government  is  wholly  irregular  and  unau- 
thorized, and  the  matter  thus  irregularly  sought  to  be  introduced  before 
the  Tribunal  should  be  excluded  from  its  view.  Otherwise  the  Gov- 
ernment of  the  United  States  would  be  placed  under  a  disadvantage  to 
which  it  should  certainly  not  be  subjected. 

In  the  first  pla  3e,  all  the  testimony  and  proofs,  which  bear  alone  upon 
the  question  of  regulations,  would  come  before  the  Tribunal  without  any 
opportunity  on  ihe  part  of  the  United  States  for  making  an  answer  to 
it.  No  such  possibility  is  contemplated  by  the  treaty,  nor  should  it  be 
allowed.  No  proceeding  is  entitled  to  the  name  of  a  judicial  one  which 
allows  one  party  to  introduce  proofs  without  giving  to  the  other  an  op- 
portunity to  meet  and  contradict  them. 

There  is  another  disadvantage  scarcely  less  onerous:  The  govern- 
ment of  Great  Britain  in  thus  waiting  until  the  proofs  of  the  United 
States  had  been  offered  secured  to  itself  the  very  great  and  unjust  ad- 
vantage of  obtaining  a  knowledge  of  its  adversary's  Case  before  com- 
mitting itself  to  its  o^.'n  view.  It  was  thus  enabled  co  witliliold  evi- 
dence which  it  would  otherwise  have  introduced,  and  to  give  evidence 
which  it  would  otherwise  have  withheld .  Such  advantages  at  once  de. 
stroy  that  equality  between  contesting  i)arties  which  is  a  prime  requi- 
site of  every  judicial  proceeding. 

But  matter  bearing  upon  the  question  of  i)roperty  was,  even  in  the 
view  of  the  Government  of  Great  Britain,  relevant  in  the  original  Case, 
and  any  evidence  or  proofs  wliich  the  Government  of  Great  Britain  de- 
sii'^d  to  submit  upon  that  point  ought  to  Jiave  been  embraced  in  their 
original  Case.  Manifestly,  everythin/r  relating  to  the  nature  and  habits 
of  the  seals  is  of  this  character.  It  is  upon  these  that  tbe  question  of 
property  depends.  All  matter  of  this  description,  except,  such  as  plainly 
tends  to  impeach  and  was  designed  to  impeach  tlie  evidence  offered  by 
the  United  States,  should  have  been  exhibited  in  the  original  Case,  and 
should  not  be  allowed  to  be  introduced  under  cover  of  the  Counter  Case. 
Surely  it  can  not  be  the  privilige  of  Her  Majesty's  Government  to  so 
introduce  its  proofs  as  to  deprive  the  United  States  of  all  opportunity 
either  to  answer  or  impeach  them. 


li' 


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1  'i. 


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316 


ARGUMENT  OF  THE   imiTED   STATES. 


r^-  >>! 


'i:\i  *»■ 


And  the  same  circnmstance  which  deprives  the  United  States  of  its 
jnst  right  of  answering  by  counteracting  proofs  the  new  matter  con- 
tained in  this  'Counter  Case  also  dei)rives  them  of  the  ability  to  fnlly 
treat  of  suQh  matter  in  argument.  Entirely  occupied  as  they  are,  and 
must  necessarily  be,  in  the  final  work  of  translating  and  carrying 
through  the  press  the  argument  already  prepaied  by  them  upon  the 
original  Cases,  they  have  no  time  at  their  disposal  in  the  short  period 
between  the  delivery  of  the  Counter  Case  and  the  time  appoint-  d  f  t- 
the  submission  of  the  arguments  within  which  to  carefully  revlev  \ud 
comment  upon  this  new  matter. 

Even  the  evidence  in  respect  of  the  claim  for  damages  made  by  Great 
Britain  is  chiefly  comprehended  in  the  Counter  Case,  so  that  the  United 
States  Government  has  no  opportunity  to  introduce  counter  proof,  nor 
even  to  analyze  in  written  argument  the  evidence  so  submitted. 

The  United  States  Government  therefore  protests  against  the  con- 
sideration by  the  Arbitrators  of  any  evidence  or  proofs  which  in  their 
judgment  should,  under  the  true  interpretation  of  the  treaty,  have 
been  embraced  in  the  original  Case  of  Her  Majesty's  Government. 

The  only  qualification  of  the  unusual  advantage  which  Her  Majesty's 
Government  would  gain  from  the  permission  to  lay  before  the  Arbitra- 
tors allegations  and  proofs  which  the  United  States  have  had  no  op- 
portunity to  an.w^er,  comes  from  the  circumstance  that  most  of  the 
new  matter  referred  to  is  of  so  little  materiality  or  of  such  small  pro- 
bative force,  that  the  privilege  of  answering  is  of  less  importance  than 
it  would  otherwise  be.  There  is  a  failure  everywhere  in  this  last  doc- 
ument, as  there  was  in  the  principal  Case  of  Great  Britain  (including 
as  part  of  it  the  separate  report  of  the  British  Commissioners),  either 
squarely  to  assert  any  proposition  vital  t-"  the  merits  of  the  contro- 
versy, or  to  attempt  directly  to  maintain  it  by  evidence  or  argument. 

There  are,  aside  from  the  matters  relating  to  sovereignty  and  juris- 
diction, several  material  questions  in  this  controversy,  substancially 
stated  in  the  Case  of  the  United  States. 

First.  Do  the  Alaskan  fur-seals,  under  ^he  recessavy  physicjil  con- 
ditions of  their  life,  habitually  so  return  to  the  Pribiloj' '  ■'■  uds  and  so 
submit  themselves  there  to  the  control  of  the  proprietors  of  those 
places  as  to  enable  the  latter  to  make  them  the  subjects  of  an  impor- 
tant economical  husbandry  in  substantially  the  same  way  and  with 
the  same  benefits  as  in  the  case  of  domestic  animalsT 

Second.  Has  the  Government  of  the  United  States,  the  occupant 


i 


iM 


POINTS   IN   REPLY   TO   THE   BRITISH   COUNTER   CASE.         317 

and  proprietor  of  those  islands,  availed  itself  of  this  opportunity,  and 
by  wit,  industry  and  self  denial  made  these  animals  the  subjects  of 
such  husbandry,  and  thereby  furnished  to  commerce  and  the  world 
the  benefits  of  the  product,  at  the  same  time  preserving  the  stock? 

Third.  Do  not  these  facts,  under  the  circumstances  proved,  give  to 
the  United  States  Government,  upon  the  just,  principles  applicable  to 
the  case,  and  in  accordance  with  the  general  usage  of  nations  in  simi- 
lar instances,  such  a  right  of  property  in  the  seal  herd  and  the  hus- 
bandry thus  based  upon  it  as  entitles  that  Government  to  protect  it 
from  destruction,  at  the  times  and  in  the  manner  complained  oft 

Fourth.  ,  Even  if  it  were  possible  to  conceive  that  this  right  of  prop- 
erty, unquestioned  so  long  as  the  seal  herd  remains  within  the  terri- 
torial waters  of  the  United  States,  is  suspended  as  to  each  and  any 
individual  seal  as  soon  and  so  long  as  it  can  be  found  outside  the  terri- 
torial line,  however  temporarily,  and  with  whatever  intention  of  re- 
turning, are  individuals  of  another  nation  then  entitled  to  destroy  such 
animals  for  the  sake  of  private  gain,  if  it  is  made  clearly  to  appear 
that  such  destruction  is  fatal  or  even  largely  injurious  to  the  important 
ttiaterial  interest  of  the  United  States  Government  so  established  and 
"  ..iMtained  upon  its  territory,  for  the  benefit  of  itself,  its  people,  and 
1 '  t'^.indt  More  especially  if  the  manner  of  such  destruction  is  in  it- 
-  %  ■  s(f  barbarous  and  inhuman  that  it  is  prohibited  in  all  places  where 

vili/ed  municipal  law  prevails  1  Is  such  conduct  a  part  of  the  just 
freedom  of  the  sea? 

Fifth.  Is  any  practicabl'-  husbandry  possible  in  pelagic  sealing,  or  is 
not  that  pursuit  essentially  and  necessarily  destructive  to  that  interest, 
and  certain,  if  engaged  in  to  any  considerable  extent,  to  result  in  the 
loss,  commercially  speaking,  of  the  .animal  to  the  world? 

Who  will  say  that  Her  Majesty's  Government,  in  its  principal  Oase, 
or  in  its  Counter  Case,  takes  a  square  attitude  upon  either  of  these  ques- 
tionf??  Who  wiM  «ay  that  it  squarely  negatives  either  of  the  two  first 
or  affirms  the  last  of  these  questions,  as  matters  of  fact,  or  meets  with 
any  satisfactory  answer,  either  upon  principle  or  authority,  the  prop- 
ositions of  the  other  two? 

What,  then,  is  the  character  of  this  Counter  Case,  so  far  as  respects 
the  natter  referred  to?  It  seems  to  consist  in  great  part  of  desultory 
observations,  suggestions,  and  conjectures,  probable  or  improbable, 
upon  immaterial  points;  or,  where  the  points  are  material,  the  matter 
is  vague  and  indefinite,  and  the  proofs  slight,  often  inconsistent^  and 


iM 


■ ,':  ■ 


<  -;i 


!H;;ii  M 


TF,  1 


318 


ABGUMENT  OF  THE  UNITED  STATES. 


everywhere  nt  satisfactory.  Observations  made  in  one  place  are  qual- 
ified in  another,  contradicted  in  another,  and  perhaps  reasserted  in 
another.  To  follow  such  a  line  of  discussion  with  minute  criticism 
would  be  an  endless  task,  and  when  it  was  concluded  it  would  be  found 
to  be  nearly  useless.  The  best  method  of  dealing  with  such  a  sort  of 
contention  w;  '"*  ^o  briefly  state  thu  points  to  which  it  seems  to  be 
directed,  and  t^  r  such  observations  upon  these  and  the  matters 
relating  to  them  a^  .^eem  most  pertinent. 

First.  Considerable  importance  seems  to  be  assigned  to  the  point 
whether  seals  are  more  aquatic  than  terrestrial  in  their  nature,  and 
surprise  is  expressed  that  tliey  should  be  viewed,  in  the  case  of  the 
United  States,  as  being  very  largely  land  animals. 

But  whether  they  are  principally  aquatic  ov  terrestrial  is  of  little  im- 
portance. It  is  certain  that  they  are  amphibious,  and  that  they  live 
sometimes  upon  the  land  and  sometimes  in  the  sea.  The  only  im- 
portant question  is  whether  they  have  those  qualities,  which,  under 
the  principles  upon  which  the  law  of  property  rests,  make  them  prop- 
erty, or  render  it  expedient  that  an  industry  established  by  the  United 
States  in  respect  to  them  should  be  protected  by  a  prohibition  of 
slaughter  upon  the  high  seas. 

Second.  Much  stress  is  also  laid  upon  the  question  whether  coition 
may  be  had  in  the  water.  Of  what  consequence  is  thist  We  know  it 
is  a  fact  that  it  is  had  principally,  if  not  exclusively,  on  the  land,  to  an 
extent  which  in  its  circumstances  forms  the  most  prominent  distinctive 
and  controlling  feature  in  the  habits  and  movements  of  the  fur-seal. 
The  births  certainly  take  place  upon  the  land,  and  it  is  there  that  the 
young  are  nourished  and  brought  up. 

Third.  A  good  deal  in  the  way  of  conjecture  is  stated  and  sought  to 
bfc  supported,  to  the  eflcct  that  the  seals  may  have  had,  in  times  of 
which  we  know  nothing,  other  breeding  places,  of  which  we  know 
nothing;  and  may  again  bedriven  to  other  haunts.  It  is  notperceived 
that  these  conjectures  are  in  any  manner  relevant.  They  are  purely 
conjectures,  and  were  they  deteiniined  one  way  or  another,  it  would 
not  matter.  What  we  are  dealing  with  is  an  animal  which  has  had  uni- 
form habits  ever  since  anything  has  been  known  about  it;  and  the  only 
reasonable  conjecture  which  we  can  make  is,  if  it  were  of  importance 
to  make  any,  that  it  will  continue  to  have,  in  the  future,  the  same 
habits,  as  under  the  same  circumstances  it  has  had  in  the  past. 

Fourth.  In  the  report  of  the  British  Commissioners,  submitted  with 


POINTS    IN  REPLY   TO    THE   BRITISH   COUNTER   CASE. 


319 


the  original  Case,  it  was  in  substance  admitted  that  the  Alaskan  herd 
was  entirely  separate  and  distinct  from  the  herd  on  the  opposite  side 
of  the  Pacific  Ocean.  A  good  deal  of  matter  is  set  forth  in  the  Counter 
Case  tending  to  support  the  opposite  notion,  that  the  members  of  these 
different  herds  commingle. 

It  is  enough  to  say  in  answer  to  all  this,  that  the  utmost  which  is 
asserted  is  were  conjecture,  and.  as  such  should  be  dismissed  as  wholly 
unworthy  of  consideration.  Surely  this  Tribunal  will  find  other  grounds 
than  conjecture  upon  which  to  base  its  decision.  And  besides,  the  ab- 
sence of  any  commingling  between  the  herds  worthy  of  consideration 
is  fully  proved  by  the  evidence. 

It  is  suggested  in  the  Counter  Case  that  the  distinctive  features 
which  the  Alaskan  herd  exhibits  are  probably  those  only  which  are 
due  to  a  long  residence  under  peculiar  geographical  conditions.  Let 
this  be  conceded.  How  otherwise  could  they  be  denied?  Upon  the 
speculative  question  whether  these  different  herds  of  seal  are  of  dif- 
ferent species  or  not,  or  whether  they  were  once  derived  from  a  com- 
mon stock,  we  are  at  liberty  to  amuse  ourselves  with  such  conjectures 
as  may  please  us.  It  is  of  no  importance  how  the  Alaskan  Lerd  ac- 
quires its  distinctive  physical  peculiarities,  if  they  have  actually  been 
acquired  so  that  they  can  be  distinguished  from  others,  and  of  this  the 
testimony  of  the  furri.ers,  to  go  no  further,  is  conclusive. 

But  what  if  it  were  proved  even  that  the  herds  did  commingle!  It  is 
not  perceived  that  this  would  be  of  any  material  consequence.  Would 
it  be  for  this  reason  any  the  less  a  crime  against  the  law  of  nature  to 
destroy  them?  Would  it  be  any  the  less  important  that  the  seals 
should  be  regarded  generally  as  property  or  any  the  less  important 
that  such  regulations  should  be  adopted  as  would  prevent  their  exter- 
mination? 

Fifth.  It  is  again  insisted,  as  it  was  in  the  report  of  the  British  Ct  x- 
missioners,  that  it  is  not  proved  that  the  females  go  long  distances 
from  the  breeding  places  into  the  sea  to  seek  for  food  while  they  are 
nourishing  their  young.  But  in  the  face  of  the  evidence  that  the 
females  actually  do  go  into  the  water  universally,  that  they  are 
destroyed  there  in  large  numbers,  and  that  they  have  in  numerous 
instances  been  found  and  killed  by  pelagic  sealers  at  long  distances 
from  the  shore  with  their  breasts  filled  with  milk,  how  can  it  be  sug- 
gested, with  any  expectation  of  belief,  that  the  fact  is  not  proved? 
For  what  purpose  do  the  females  resort  to  the  water?    What  is  the 


W' 


m 


,.  ivM' 


320 


AROUMENT  OF  THE   UNITED   STATES. 


object  of  tlieir  distant  excursions  into  Bering  sea,  where  they  have 
been  Lnowu  to  bef  Is  it  not  reasonable  to  suppose  that  nursing 
mothers  require  nourishment?  And  how  else  are  the  young  sup- 
ported! 

But  here,  again,  suppose  it  were  true  that  these  excursions  were  not 
made  for  the  purpose  of  food.  They  are  yet  made,  and  the  danger  of 
their  being  slaughtered  by  pelagic  sealers  is  as  great  as  if  the  object 
of  their  excursions  were  food. 

Sixth.  Much  space  is  devoted  in  this  Counter  Case  to  the  subject  of 
the  frequent  finding  of  numerous  dead  pups;  and  here  also  conjecture 
is  abundantly  resorted  to.  It  is  suggested  that  they  may  have  been 
killed  by  disease,  or  by  the  rush  of  other  seals  over  them,  or  by  the 
waves  of  the  sea,  or  by  their  mothers  having  been  killed  by  being 
driven  to  the  hauling  grounds  and  thus  injured  and  prevented  from 
finding  their  way  back  to  their  young.  But  to  what  purpose  is  it  to 
suggest  that  a  g^^eat  variety  of  things  may  have  happened,  of  no  one 
of  which  any  proof  is  given?  Doubtless  it  is  true  that  some  of  the 
young  die  from  a  variety  of  causes  of  which  we  know  nothing,  as  is  the 
case  with  all  animals.  The  question  is,  whether  the  slaughter  of  their 
mothers  by  pelagic  sealing  is  not  a  cause,  and  the  principsil  cause  of 
this  mortality.  When  we  know  that  the  mothers  do  habitually  resort 
to  the  sea,  where  they  are  killed  in  great  numbers,  when  we  know  that 
they  have  often  been  killed  at  long  distances  from  the  shore  with  their 
breasts  distended  with  milk,  when  we  know  that  suckling  is  the  natu- 
ral and  only  mode  of  nourishment  to  the  young,  and  when  we  know 
that  a  number  of  the  pups  dead  uiion  the  islands  are  extremely  emaci- 
ated, and  exhibit  all  tho  appearances  of  having  died  in  consequence  of 
the  loss  of  nourishment,  the  conclusion  seems  plain  enough  that  their 
mothers  have  been  killed  at  sea  and  they  starved  in  consequence  and 
no  amount  of  conjecture  can  displace  it. 

Seventh.  It  is  said  by  way  of  argument  against  the  allegation  of  a 
property  interest  that  the  seals,  although  they  return  to  the  same  gen- 
eral breeding  place,  do  not  always  return  to  the  same  island  or  to  the 
same  place  upon  the  same  island.  This  may  or  may  not  be  true;  but  of 
what  importance  is  it,  when  it  appears  that  all  the  islands  ever  have 
been,  now  are,  and  are  likely  to  continue  to  be  the  propert;y  of  one  pro- 
prietor, the  United  States  Government!  And  if  it  were  otherwise,  if 
there  were  many  diftereut  proprietors  of  the  diflfcrent  islands  and  of  dif- 
ferent places  on  the  same  islands,  of  what  consequence  would  it  bo 


POINTS   IN    REPLY   TO   THE    BRITISH    COUNTER   CASE.        321 


[en- 
tile 
tof 
ave 
pro- 
le, if 
dif- 
t  bo 


upon  the  general  questions  of  property  interest  or  what  regulations 
irere  necessary  in  order  to  preserve  the  herdf 

All  the  points  above  enumerated,  made  by  the  British  Counter  Case, 
are,  it  is  conceived,  essentially  immaterial.  They  might  be  decided  the 
one  way  or  the  other  without  touching  the  merits  of  the  real  question 
of  the  controversy.  In  saying  this,  however,  we  by  no  means  intend  to 
intimate  that  anything  is  contained  in  this  Counter  Case,  by  way  of 
evidence,  which  in  any  way  modifies  or  weakens  the  proofs  which  the 
United  States  have  in  their  principal  Case  adduced  to  support  the  posi- 
tions taken  by  them. 

There  are,  however,  some  points  which  the  Counter  Case  deals  with 
which  are  of  greater  importance;  but  in  respect  to  these,  although  the 
points  themselves  are  material,  the  new  evidence  which  is  brought  for- 
ward or  the  new  views  which  are  suggested  are  not  perceived  to  be 
material.    Some  brief  observations  should  be  bestowed  upon  them. 

First.  Pelagic  sealing  is  again  defended,  but  how  is  it  defended  t  Is 
it  denied  that  it  is  in  its  nature  destructive  as  involving  the  killing  of 
females  to  a  much  greater  extent  than  males  f  Is  it  denied  that  the 
the  greater  part  of  these  females  are  either  pregnant  or  nursing,  and 
sometimes  both  T  Is  it  denied  that  a  great  many  victims  are  killed  and 
wounded  which  are  never  recovered!  Is  it  denied  that  many  young 
perish  on  account  of  the  death  of  the  mothers  f  There  is  no  denial  upon 
either  of  these  points.  What  then  is  asserted  or  suggested  in  the 
Counter- Case  f  Simply  that  the  statements  upon  this  subject  are  exag- 
gerated. 

It  would  enable  counsel  for  the  United  States  to  better  answer  any 
position  taken  on  the  part  of  the  Government  of  Great  Britain  upon 
these  points  if  the  counsel  for  the  latter  would  commit  themselves  to 
some  definite  proposition  or  assertion,  but  this  is  carefully  avoided  by 
them.  They  say,  indeed,  that  the  statements  upon  this  head  are  ex- 
aggerated ;  but  whose  statements  are  exaggerated?  And  how  much  are 
they  exaggerated!  The  evidence  given  in  the  Case  of  the  United 
States  in  great  abundance  shows  that  from  76  to  90  per  cent  of  the 
entire  pelagic  catch  is  composed  of  females.  If  it  be  this  which  it  is 
insisted  on  the  part  of  Great  Britain  is  an  exaggerated  statement,  then 
how  much  is  it  exaggerated?  Is  it  exaggerated  5,  or  10,  or  20,  or  40, 
or  50  per  cent?  What,  according  to  tlie  best  information  obtainable 
by  the  counsel  for  Great  Britain,  is  the  .^nost  reasonable  statement  of 
the  proportion  of  females  in  the  pelagic  cavch  ?  They  give  us  no  infor- 
14749 21 


\h\ 


t^^X- 


322 


ARGUMENT   OF   THE   UNITED    STATES. 


ill,- 


I'' 
1 

!    it 


il 


ination  upon  these  points.  They  ofier  no  estimate;  and  if  '.vo  recur  to 
the  proofs  contained  in  the  deiwsitious  which  are  given,  \re  are  still 
worse  oflF.  These  vary  from  5  to  80  per  cent.  Most  of  them,  those 
that  place  the  amount  at  less  than  half,  every  one  can  see  must  be 
false.  For  what  purposes  are  such  proofs  presented?  Is  it  exiiected 
that  they  will  be  believed  to  be  true?  It  will  perhaps  be  suggested 
that  the  truth  may  be  found  by  taking  an  average  of  these  inconsistent 
statements.  Such  a  course  has  been  pursued  on  the  part  of  the  Gov- 
ernment of  Great  Britain  upon  the  point  of  how  many  seals  are  killed 
or  wounded  that  are  never  recovered;  but  the  method  of  endeavoring 
to  obtain  the  truth  by  taking  an  average  of  lies  seems  to  be  open  to 
question. 

Upon  this  whole  matter  the  counsel  for  the  United  States  will  content 
themselves  by  offering  the  following  summary  of  considerations : 

I.  The  assertion  in  the  Case  of  the  United  States  fs,  that  the  propor- 
tion of  females  in  the  pelagic  catch  is  at  least  75  per  cent.  The  rea- 
sonableness of  this  is  supported  in  multiform  ways. 

(1)  It  is  nowhere  denied  in  the  report  of  the  Commissioners  on 
the  part  of  Great  Britain,  nor  even  in  the  British  Counter  Case. 

(2)  Upon  any  fair  construction  of  the  answer  of  one  party  to  the 
allegation  of  another,  it  must  be  taken  as  admitted.  The  admis- 
sion is  reluctantly  made  in  the  British  Commissioners'  Eeport  and 
in  the  British  Counter  Case  also  that  a  "considerable  proportion" 
of  the  pelagic  catch  consists  of  females.  What  does  a  "  considera- 
ble proportion  "  meant  Five  per  cent.,  or  10  per  cent.,  or  20,  or  50, 
or  75,  or  80?  The  language  is  sufficiently  broad  and  indefinite  to 
cover  either  of  the  proportions  named,  and,  as  the  assertion  made 
on  the  part  of  the  United  States  is  not  denied,  the  admission  in 
question  must  be  taken  to  be  an  admission  of  the  fact  substantially 
as  asserted  on  the  i)art  of  the  United  States. 

(3)  The  proofs  adduced  by  the  United  States  from  persons  en- 
gaged in  pelagic  sealing  or  with  definite  knowledge  of  it,  over- 
whelmingly su]>port  the  assertion. 

(4)  The  proofs  contained  in  the  British  Counter  Case  also  support 
it.  They  are  the  statements  of  the  pelagic  sealers  themselves,  a 
class  of  witnesses  in  the  highest  degree  intf-  ^ted  and  not  very 
much  to  be  depended  upon.  They  must  be  taken  most  strongly 
against  the  parties  making  them.  And  excluding  those  that  are 
manifestly  false,  we  find  enough  remaining  to  fully  support  the  con- 


POINTS   IN   REPLY   TO   THE    BRITISH   COUNTER   CASE.        323 


tention  of  the  United  States.  Among  these  witnesses  there  are  a 
large  number  who  place  the  proportion  of  females  in  the  catches 
made  by  them,  respectively,  higher  than  60  per  cent. 

(5)  But  the  proof  furnished  by  tlie  furriers  is  absolutely  decisive, 
and  this  makes  the  proportion  fully  equal  to  the  assertion  by  the 
United  States. 

(G)  If  we  look  at  the  probabilities  of  the  case,  no  assertion  in 
opposition  to  the  contention  of  the  United  States  could  be  enter- 
tained for  a  moment.    When  we  consider  that  the  female  at  sea  is, 
as  a  general  rule,  more  easily  approached,  and  therefore  more  easily 
secured,  than  the  male,  and  that  the  number  of  breeding  females 
is,  as  compared  with  the  breeding  males  probably  twenty  to 
one,  how  is  it  possible  that  the  slaughter  of  the  females  should  not 
embrace  anywhere  from  three-fourths  to  four-fifths  of  the  entire 
catch  f     If  indeed,  we  could  credit  the  assertion  continually  put 
forward  in  the  report  of  the  British  Commissioners  and  in  the  Brit- 
ish Counter  Case,  that  there  has  been  for  years  on  the  Pribilof 
Islands  an  excessive  slaughter  of  young  males,  and  that  thus  the 
number  of  breeding  males  has  been  very  much  reduced,  so  as  to 
make  the  harems  three  and  four  times  as  large  as  they  formerly 
were,  the  excess  of  females  over  males  would  be  vastly  multiplied, 
and  the  wonder  would  almost  be  how  any  breeding  male  should 
ever  be  killed. 
II.  Considerable  attention  is  given  to  an  attempt  to  controvert  the 
position  of  the  United  States,  that  a  large  number  of  seals  struck  by 
pelagic  sealers  are  lost  without  being  recovered.    Of  course  the  United 
States  have  had  no  opportunity  to  controvert  the  proofs  presented  upon 
this  point  in  the  British  Counter  Case.  They  contain  no  evidence  except 
that  of  pelagic  sealers^  and  this  must  be  taken  most  strongly  against 
them.    Upon  this  point  the  reasonable  and  probable  inferences  from 
incontestible  facts  are  of  greater  weight  than  the  loose  and  suspicious 
statements  of  the  witnesses  referred  to.    We  know  that  when  a  seal  is 
killed  he  sinks  at  once,  because  his  specific  gravity  is  greater  than 
that  of  the  water,  although  he  may  sink  more  quickly  in   some  in- 
stances than  others.    We  also  know  that  when  a  seal  is  wounded,  but 
not  killed,  he  has  great  capacity  to  escape  the  pursuer.    We  know  that 
skill  in  shooting  and  skill  in  recovery  must  vary  very  much  among  dif- 
ferent men.    Under  these  circumstances,  it  is  not  reasonable  to  believe 
that  half  the  seals  fatally  wounded  are  secured. 


TM 


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4.-.^.. 


J.  r;-. 


324 


ABQUMENT  OF  THE  UIOTED   STATES. 


III.  Farther  attention  is  given  to  ^eged  mismanagement  of  the  seal 
herd  npon  the  Pribilof  Islands.  Little  or  nothing  new  in  the  way  of 
evidence  is  offered  upon  the  subject,  but  the  assertions  contained  in  the 
British  Commissioners'  report  are  repeated  and  enlarged.  The  points 
on  which  particulars  of  this  alleged  mismanagement  are  stated  are:  (1) 
the  excessive  killing  of  young  males;  (2)  injuries  committed  by  what 
is  called  "overdriving";  (3)  raids  upon  the  islands. 

(1)  Concerning  the  excessive  slaughter  of  the  young  males, 
there  is  no  trustworthy  evidence  than  an  annual  draft  of  100,000 
was,  before  any  injury  effected  by  pelagic  sealing,  excessive.  It 
is  undoubtedly  true  that  such  a  draft  upon  the  islands,  coupled  with 
any  considerable  amount  of  cai)ture8  at  sea,  would  be  excessive, 
and  consequently  we  find  that  after  i)elagic  sealing  had  reached 
considerable  proportions  it  became  increasingly  difScult  to  make 
the  annual  draft  of  the  100,000  upon  the  islands,  which  difficulty 
increased  to  such  an  extent  that  in  1890  it  was  arrested  by  the 
action  of  the  agent  of  the  United  States  Government.  If  at  that 
time,  or  prior  to  that  time,  the  extent  of  pelagic  seoillng  had  been 
known  and  its  effects  upon  the  herd  ascertainable,  action  would 
have  sooner  taken  place  to  restrict  the  killing  upon  the  islands. 
In  this  suggestion  the  damages  occasioned  by  pelagic  sealing  are 
insisted  on  as  its  defense. 

(2)  In  respect  to  over-driving,  no  proofs  are  submitted  which 
furnishes  any  considerable  support  to  the  assertion.  It  is  un- 
doubtedly true  that  from  the  very  nature  of  the  case  there  may  be 
more  or  less  seals  included  in  the  drives  unfit,  by  reason  of  being 
females  or  otherwise,  for  slaughter.  These  are  allowed  to  drop 
out  to  regain  the  herd.  The  business  of  driving  may  be,  if  negli- 
gently conducted,  trying  and  injurous  to  the  subjects  of  it,  but  it 
is  not  necessarily  so  in  any  considerable  degree.  There  is  no 
proof  worthy  of  attention  that  it  is  so  negligent.  The  interest  of 
those  engr^ed  in  it  is  largely  the  other  way.  And  the  evidence 
that  it  is  well  conducted  is  ample. 

(3)  Upon  the  Islands  it  is  to  be  said  that  undoubtedly  there 
have  been  in  the  past,  and  may  be  in  the  future,  attempts,  some 
timeo  successftil  on  the  part  of  marauders,  to  take  seals  by  night. 
But  of  what  consequence  is  this  to  the  argument f  Does  it  show 
anything  more  than  that  there  ought  to  be  kept  an  adequate  guardt 
And  certainly  we  know  that  it  is  in  the  interest  of  the  proprietors 


( 


POINTS   IN    REPLY   TO   THE   BRITISH    COUNTER   CAftE. 


325 


to  keep  one.  What  self-interest  will  not  move  men  to  do,  they 
will  not  do  from  any  other  motive!  But  whence  do  these  raids  comet 
From  the  very  sealing  vessels  engaged  in  pelagic  sealing.  That  is 
one  of  the  mischiefs  of  that  pursuit. 

(4)  Touching  the  allegations  of  mismanagement  upon  the  islands, 
embracing  the  three  forms  of  possible  injury  to  the  seals  which 
have  been  mentioned,  there  is  this  to  be  said:  they  may  possibly 
occur  in  consequence  of  carelessness  or  neglect;  but  every  motive 
and  every  Interest  stimulates  the  United  States  as  well  as  their 
lessees,  to  make  the  evils  as  small  as  possible. 

And  concerning  the  extent  to  which  these  evils  exist,  the  con- 
clusion must  be  formed  upon  the  statements  of  actual  witnesses, 
and  not  upon  lectures  or  articles  in  newspapers  based  by  the 
writers  we  do  not  know  upon  what  evidence  or  whether  upon  any 
evidence  at  all. 

(5)  But  what  is  the  point  supposed  to  be  established  or  sup- 
ported by  this  matter  concerning  mismanagement  upon  the  islands? 
What  is  the  object  for  which  it  was  introduced!  What  conclusion 
would  it  justify  if  the  assertions  were  proved  to  their  fullest  extent! 
Do  they  show  that  pelagic  sealing  is  any  less  mischievous!  Do 
they  show  that  in  that  form  of  sealing  males  are  taken  and  not 
females!  Do  they  show  that  in  that  form  of  sealing  a  great  many 
are  not  wounded  and  crippled  that  are  never  recovered!  Do  they 
show  that  in  administering  a  herd  of  such  animals  on  the  land 
females  should  be  slaughtered  and  not  males!  Dr  'i  <  /  show,  or 
are  they  intended  to  show,  that  the  United  States  has  not  adojtted 
methods  grounded  upon  the  right  principles!  Do  they  show  or 
are  they  intended  to  show,  that  a  different  set  of  proprietors  than 
the  United  States  would  attend  to  the  business  in  a  better  and 
more  economical  manner  and  with  better  methods!  If  so,  what 
sort  of  proprietors  should  they  be!  What  scheme  of  administra- 
tion should  be  followed!  How  should  the  selections  for  slaughter 
be  made!  Answers  to  these  questions  would*  be  extremely  perti- 
nent, but  none  seem  to  have  been  suggested. 

(6)  The  report  of  the  British  Commissioners  more  than  Intimated, 
although  quite  inconsistently  with  admissions  made  by  them,  that 
the  capture  of  seals  upon  the  land  was  an  error,  and  that  the  ideal 
mode  of  dealing  with  this  animal  was  to  confine  the  pursuit  to  the 
sea.    The  Oounter  Oase  on  the  part  of  Great  Britain  does  not  avow 


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326 


▲BOUMENT  OP  THE  UNITED  STATES. 


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this  proposition.  Is  it  the  intention  on  the  part  of  the  Oovem- 
ment  of  Great  Britain  to  support  that  view?  If  so,  some  intima- 
tion to  that  effect  would  have  been  extremely  pertinent  in  this 
Counter  Case. 

And  when  that  view  comes  to  be  supported,  if  at  all,  it  is  to  be 
hoped  that  those  who  advocate  it  will  take  into  consideration  and 
give  satisfactory  explanations  upon  the  following  points: 

(a)  What  nuin  of  science,  familiar  with  the  races  of  animals  and 
the  causes  which  tend  to  their  destruction  or  their  preservation, 
entertains  a  like  view?  What  man  acquainted  with  the  business 
of  practical  husbandry  and  dealing  for  profit  with  a  race  of  ani- 
mals polygamous  in  its  nature,  thinks  it  wise  to  slaughter  es 
and  females  indiscriminately  for  the  market,  or  rather,  tc  e 

their  selections  for  slaughter  consist  in  the  proportion  of  75  por 
cent  of  females. 

(6)  Is  it  likely  that  any  better  provision  for  the  preservation  of 
the  race  of  fur-seals  can  be  suggested  than  that  which  assigns  the 
rewards  of  preservation  to  those  who  alone  have  the  ability  and 
the  disposition  to  exercise  the  best  methods  of  preservation? 
Is  the  method  which  has  preserved  in  undiminished  numbers  for 
one  hundred  years  and  upwards  the  herd  of  seals  ri'esorting  to  the 
Gommander  Islands,  a  mistake,  and  is  the  same  method  which  has 
been  pursued  for  nearly  the  same  period  on  the  P  dbilof  Islands, 
and  with  the  same  effect  until  the  ravage  made  by  pelagic  sealing 
were  committed,  also  a  mistake?  And  whereii\  is  there  any 
essential  difference  between  the  methods  pursued  on  ^he  two  groups 
of  islands  f 

And,  finally,  were  it  even  admitted  that  the  United  States  Gov- 
ernment mismanages  its  own  business  to  the  detrimv,iii;  of  its  own 
interests,  would  that  destroy  its  right  of  property  in  the  business? 
Or  deprive  it  of  the  right  of  self-defense?  Or  justify  a  slaughter 
by  the  poachers  which  would  otherwise  be  unjustifiable?  Or  even 
render  it  probable  that  such  mismanagement  would  not  be  corrected 
by  experience? 
It  is  worthy  of  remark,  in  conclusion,  upon  the  subject  of  regulations, 
so  largely  dealt  with  in  the  British  Counter  Case — 

1.  That  while  it  is  now  professed  on  the  part  of  Great  Britain  that  Her 
Majesty's  Government  is  willing  that  just  regulations  for  the  preserva- 
tion of  the  fur-seal  should  be  adopted,  it  is  solely  owing  to  the  refusal 


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POINTS   IN   REPLY   TO    TUE   BUITISH   COUNTER   CASE.         327 

of  tliat  governiueut  to  consent  to  any  such  regulations,  on  account  of 
the  objections  of  Canada,  that  this  controversy  lias  arisen  and  tbis  ar- 
bitration lias  been  rendered  necessary.  The  attitude  of  Canada  on  this 
subject  plainly  shows  that  it  quite  well  understands  that  any  regula- 
tions adopted  for  the  preservation  of  the  seal  which  would  be  at  all  ad- 
equate for  that  purpose  must  substantially,  if  not  entirely,  put  an  end 
to  pelagic  sealing.  The  object  of  the  adventurers,  which  that  Province 
thinks  it  right  to  protect,  is  simply  to  maivc  what  profit  is  to  be  derived 
out  of  the  destruction  of  the  fur-seals  in  the  few  years  required  for  its 
completion. 

2.  In  the  British  Counter  Case,  every  objection  possible  to  be 
brought  forward  to  the  making  or  enforcing  of  any  regulations,  is 
insisted  on.  The  real  position  assumed  is  that  of  opposition  to  any 
regulations  that  would  be  of  sufficient  value  to  be  worth  adopting. 
Those  proposed  by  the  British  Commissioners  are  for  the  benefit  of 
pelagic  sealing  and  an  enhancement  of  its  profits,  and  its  consequent 
destruction  by  restricting  the  unquestioned  right  of  the  United  States 
to  take  the  seals  on  its  own  territory.  In  answer  to  the  proved  cliarge 
that  pelagic  sealing  conduces  to  the  inevitable  extermination  which  it 
has  produced  everywhere  else,  and  that  the  methods  employed  by  the 
United  States  Government  tend  to  the  preservation  of  the  animal 
while  making  its  product  available  to  the  world,  it  is  gravely  proi)osed 
by  the  British  Commissioners  to  adopt  regulations  which  would  dimin- 
ish that  use  which  is  consistent  with  th3  protection  of  the  seal,  and 
which  is  not  called  in  question  by  the  treaty,  so  as  to  increase  the  use 
which  is  destructive;  and  to  add  to  the  losses  already  suffered  by  the 
United  States  in  its  territorial  interest,  by  increasing  the  profits  of 
those  who  are  engaged  in  destroying  it.  It  is  difficult  to  deal  seriously 
with  such  proposals. 

e.  j.  puelvs. 

James  C.  Carter. 

H.  W.  Blodgett. 

F.  U.   COUDERT. 


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